Jessica Margaret Adhiambo Oyigo v Caffin Pierluigi & another [2020] KEELC 517 (KLR)
The bottom line
#A Mombasa court protected the occupant of disputed land from eviction while trial proceeds, but refused to correct the land register early.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to prohibitory temporary injunction in a competing ownership dispute
Granted on the footing that fair orders should safeguard and maintain the status quo pending trial
The applicant claims ownership by transmission from her deceased parents while the 1st respondent claims ownership by purchase and holds a judgment and decree in his favour from ELC No. 20 of 2018 (since stayed). The court declined to determine true ownership at the interlocutory stage and held it fair to maintain the status quo, restraining the 1st respondent from interfering with the applicant's possession until the suit is heard and determined.
Whether a mandatory injunction to rectify the register should issue at the interlocutory stage
Refused for want of special circumstances
Applying Locabail International Finance Ltd v Agro Export, the court held that mandatory injunctions at the interlocutory stage require special circumstances and a high sense of assurance that the injunction would be right at trial. Ownership was yet to be determined and the matter was not one that could be decided summarily, so the mandatory relief was reserved for trial.
Res judicata in light of the judgment in ELC No. 20 of 2018
Not determinative because that judgment was stayed and orders emanating from it set aside, and the suit was withdrawn to this court for joint hearing
The 1st respondent argued the application was a nullity given a prior judgment and decree in his favour in ELC No. 20 of 2018. The court noted that by a ruling of 30th October 2019 the Chief Magistrate stayed that judgment and set aside all orders emanating from it, directed consolidation, and invoked Section 18 of the Civil Procedure Act to withdraw the subordinate court suit to itself.
Legal principles established
#- The Giella v Cassman Brown conditions govern temporary injunctions: prima facie case, irreparable harm not compensable by damages, and balance of convenience
- A mandatory injunction at interlocutory stage requires special circumstances and a higher standard of assurance than a prohibitory injunction
- A prima facie case is one in which there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
- In interlocutory applications the court may go beyond the Giella tests and opt for the lower risk of injustice, including maintaining the status quo
Court orders
#- 1.Suo moto withdrawal of Mombasa CMC ELC No. 20 of 2018 to the Environment and Land Court for hearing and disposal together with this suit under Section 18 of the Civil Procedure Act
- 2.Prohibitory injunction restraining the 1st respondent from interfering with the applicant's possession and occupation of the suit property in any manner whatsoever until the case is heard and determined
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 2 & 4 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 18 of the Civil Procedure Act (withdrawal of subordinate court suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jessica Margaret Adhiambo Oyigo v Caffin Pierluigi & another [2020] KEELC 517 (KLR)", Case Analysis (2020). ELC Case (Mombasa) - Notice of Motion dated 13th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/517/eng@2020-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.