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ELCPartially AllowedNot stated in the judgment (notice of motion dated 16th May 2016)· [2019] KEELC 3809 (KLR)

Alice Mbinya Ombayo & another v Henry Isinya Ndisi & 2 others [2019] KEELC 3809 (KLR)

Environment and Land Court
10 April 2019
790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenyan land buyers who pay, possess and develop land can block its sale or subdivision until the dispute is fully heard.

What this practically means

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Executive summary

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Alice Mbinya and Jacob Odhiambo Ombayo, plaintiffs, moved the Environment and Land Court by notice of motion dated 16th May 2016 seeking a temporary injunction to restrain Henry Isinya Ndisi, Boaz Okello and Judith Okello from trespassing upon, building on or interfering with land parcel Kisumu/Fort-Tenan/856 pending trial, and a prohibition order against the title preventing any transfer, subdivision or interference. They asserted they had bought the land, paid Kshs. 4.5 million of the price with a balance of Kshs. 1.5 million outstanding, been placed in possession, erected a house and farmed the land until the defendants allegedly began trespassing. The 1st Defendant opposed through grounds of opposition, contending the application was misconceived, the plaintiffs came to court with unclean hands, and they were guilty of laches for not completing the purchase price. The Court framed three issues: prima facie case for injunction, a reasonable case for prohibition, and costs. It found the sale agreement undisputed; the payments, possession, erection of a house and development unrebutted as no replying affidavit or defence had been filed; the letter of consent to transfer dated 27th January 2009 unchallenged; and no submissions filed in support of the grounds of opposition. It allowed the application in terms of prayers 3 and 4 only, treating the substituted service prayer as abandoned, and declined to award costs as none had been sought in the application.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success for a temporary injunction

Holding

Yes - the unchallenged sale agreement, part-payment of the purchase price, unchallenged possession and development, and an unchallenged letter of consent to transfer established a prima facie case at the interlocutory stage

Reasoning

The Court noted the sale agreement between the Plaintiffs and the 1st Defendant was undisputed; the outstanding balance of Kshs. 1.5 million was acknowledged but the payments made, possession, erection of a house and farming were unrebutted as no replying affidavit or defence was filed. The letter of consent to transfer dated 27th January 2009 was also unchallenged, and the 1st Defendant filed no submissions on the grounds of opposition.

p. 2
02

Whether a prohibition order should issue against the suit land's title

Holding

Yes - the Court found merit in the application and granted the prohibition order in terms of prayers 3 and 4

Reasoning

The Court found the Plaintiffs' claim of possession and development unrebutted, and the consent to transfer unchallenged. In the absence of any defence or submissions opposing the relief, the Court found merit in both the temporary injunction and the prohibition order restraining transfer, subdivision or interference with the title.

p. 2
03

Costs

Holding

No costs awarded

Reasoning

Although the application did not seek costs and Counsel only addressed costs in the last sentence of written submissions, the Court declined to award any, effectively leaving each party to bear their own costs of the application.

p. 2

Legal principles established

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  • Where the existence of a sale agreement, payments made thereunder, possession and development of the suit land are uncontroverted (no replying affidavit or defence filed), a purchaser in possession establishes a prima facie case warranting a temporary injunction and prohibition order against dealings with the title pending trial

Court orders

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  1. 1.Temporary injunction restraining the Defendants, their employees, agents, representatives, assigns or any person acting through their directions from trespassing upon, building upon or in any other way dealing in or interfering with land parcel Kisumu/Fort-Tenan/856 pending the hearing and determination of the suit
  2. 2.Prohibition order against title number Kisumu/Fort-Tenan/856 stopping and/or preventing any transfer, subdivision or any interference with the said title
  3. 3.No order as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Kisumu/Fort-Tenan/856 (statutory basis not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Alice Mbinya Ombayo & another v Henry Isinya Ndisi & 2 others [2019] KEELC 3809 (KLR)", Case Analysis (2019). Not stated in the judgment (notice of motion dated 16th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3809/eng@2019-04-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.