Lucas Ouma Marachi & 2 others v Land Registrar, Busia & 2 others [2019] KEELC 5082 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a temporary injunction should issue against the 3rd Respondent notwithstanding his claim of registered ownership
The injunction was granted because the title is disputed and the 3rd Respondent's activities on the land, including ploughing the path to the 1st Applicant's house, were unwarranted provocation capable of breaching the peace
The court found the 3rd Respondent's activities began after the court's earlier ruling dismissing his own application for restraining orders. The 1st Applicant and his mother reside on and cultivate the land, and ploughing even the access path occasioned provocation likely to breach the peace. Following Munyu Maina, disputed registration cannot confer conclusive ownership rights. The Giella threshold was found satisfied and prayer 2 was allowed with costs in the cause.
Whether the Applicants satisfied the Giella v Cassman Brown criteria for an interlocutory injunction
The court held the threshold was met, permitting the injunction
The court applied the classic Giella test. It accepted that the Applicants demonstrated a prima facie case with a probability of success, given the ongoing challenge to the 3rd Respondent's registration, and that the interference threatened irreparable harm to the resident family, with the injunction serving to maintain peace pending trial.
Legal principles established
#- A party cannot rely on a disputed title to engage in acts that interfere with another's occupation and enjoyment of the land pending determination of the dispute
- The Giella v Cassman Brown principles govern the grant of a temporary injunction: prima facie case with probability of success, irreparable loss not compensable by damages, and, if in doubt, balance of convenience
Court orders
#- 1.A temporary injunction issued restraining the Respondent from ploughing, planting, blocking the Applicants' road of access and pathways, barring the Applicants and their family members from building or lawfully using the land and/or interfering with the Applicants' and their families' quiet enjoyment of the original land parcel No. SAMIA/LUCHULULO-BUKHULUNGU/225 now said to be LR Nos SAMIA/LICHULULO-BUKHULUNGU/1919, 1920 and 1921
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucas Ouma Marachi & 2 others v Land Registrar, Busia & 2 others [2019] KEELC 5082 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 18/9/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5082/eng@2019-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.