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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4397 (KLR)

Kenya African National Union v County Government of Kakamega [2019] KEELC 4397 (KLR)

Environment and Land Court
26 February 2019
NMN. A. MATHEKA
822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court found the landowner had a strong case but only ordered things stay as they are until the full dispute is heard.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court at Kakamega by a notice of motion dated 9th October 2018, brought under sections 3 and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, seeking a temporary injunction restraining the defendant, its agents and servants from trespassing on, demolishing or interfering with the plaintiff's exclusive use of L.R. No. KAKAMEGA TOWN/BLOCK II/230, plus an order directing the OCS Kakamega Police Station to oversee compliance, and costs. The application was supported by the affidavit of Jonathan Weche Chacha on the grounds that the applicant was the sole and duly registered proprietor of the suit land. The defendant opposed, contending that although the plaintiff was the lessee through registered trustees, only the named trustees had legal capacity to sue in respect of trust land; that the removed kiosks were illegal structures in the Central Business District erected without the requisite planning, health and sanitary approvals; and that no proved loss had been suffered. The court, applying Giella v Cassman Brown and Mrao Ltd v First American Bank of Kenya Ltd on the meaning of a prima facie case, found that the certificate of lease and allotment letter annexed by the applicant established a prima facie case with a probability of success. It directed that the status quo be maintained pending the hearing and determination of the case, with costs of the application in the cause.

Key legal issues

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01

Whether the applicant demonstrated a prima facie case with a probability of success

Holding

The court found that the certificate of lease and allotment letter annexed by the applicant established a prima facie case with a probability of success

Reasoning

The application was grounded on the applicant's claim to be the sole and duly registered proprietor of the suit land, and that the respondents were forcefully attempting to interfere with his peaceful use of the land without any colour of right. The applicant annexed a certificate of lease and an allotment letter to prove the claim. On that material the court concluded that a right had apparently been infringed so as to call for an explanation or rebuttal, satisfying the first Giella condition. The defendant's objection on capacity and illegality of the kiosks did not displace this finding at the interlocutory stage.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of the applicant's case upon trial

Court orders

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  1. 1.That the status quo be maintained pending the hearing and determination of the case
  2. 2.That costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 3 and 3A
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules

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, "Kenya African National Union v County Government of Kakamega [2019] KEELC 4397 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4397/eng@2019-02-26

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