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ELCDismissedNotice of motion dated 22/3/2019 (main suit over land parcel BUKHAYO/EBUSIBWABO/65)· [2020] KEELC 747 (KLR)

Ibrahim Nyongesa Ouma v Philip Namenge Opemi [2020] KEELC 747 (KLR)

Environment and Land Court / High Court, Busia

5 November 2020

AOA. OMOLLO

814 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan landowner who knew of a buyer's occupation for years lost his bid to evict them through a temporary injunction, with costs.

What this practically means

Executive summary

This was a ruling on the Plaintiff/Applicant's notice of motion dated 22 March 2019, brought under Sections 1A, 2B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction restraining the Defendant/Respondent from entering, cultivating or in any way interfering with land parcel BUKHAYO/EBUSIBWABO/65 pending determination of the main suit. The Applicant asserted title through inheritance and peaceful occupation, complaining that the Respondent had recently commenced cultivation without colour of right. The Respondent opposed the application through a replying affidavit sworn on 19 February 2020, deposing that he purchased a portion of the suit land from Ronald Ouma Wafula on 9 August 2016 and 21 November 2016, took possession immediately, and that the Applicant himself witnessed the agreement of 21 November 2016. The Respondent, a self-described purchaser for value residing on the plot with his family, alleged the Applicant conspired with the local administration to disinherit other beneficiaries of the estate of Desterio Ouma. Both parties filed written submissions relying on Giella v Cassman Brown, and the Respondent additionally cited Mrao Ltd v First American Bank of Kenya Ltd. Applying the Giella principles, the court held that the Applicant, who was registered as proprietor only on 23 August 2018 yet knew of the Respondent's interest by November 2016, failed to demonstrate a prima facie case with probability of success; that he did not state that his loss could not be compensated in damages; and that the balance of convenience favoured the Respondent remaining in occupation. The court also noted that the dispute over whether the land sold was parcel 65 or 767 could only be resolved at the hearing. The application was dismissed with costs on 5 November 2020.

Key legal issues

Whether the Applicant established a prima facie case for a temporary injunction

Holding

No prima facie case was demonstrated; the Applicant knew of the Respondent's transaction by November 2016 and did not respond to the Respondent's averments by affidavit

Reasoning

The Applicant holds title but did not file a supplementary affidavit to rebut the Respondent's evidence of purchase and occupation. He conceded witnessing the payment of the purchase price in November 2016, and did not deny that the Respondent lives on the land with his family, undermining any claim of recent wrongful interference.

p. 2

Irreparable harm and balance of convenience

Holding

The Applicant did not show that his loss could not be compensated in damages, and the balance of convenience favoured the Respondent, who is already in occupation

Reasoning

The Respondent has occupied and used the land for over four years with the Applicant's knowledge and resides there with his family. Preserving the status quo favours the Respondent; an injunction would effectively evict him before trial.

p. 2

Whether the dispute over the identity of the land sold (parcel 65 vs 767) could be resolved on the application

Holding

That issue could only be determined at the hearing of the main suit

Reasoning

The copies of agreements annexed to the affidavits appeared on their face to refer to the suit land, and the Applicant's contention that the land sold was Bukhayo/Ebusibwabo/767 required fuller evidence at trial.

p. 2

Legal principles established

An applicant for an interlocutory injunction must show a prima facie case with probability of success, or irreparable loss not compensable in damages, failing which the court weighs the balance of convenience (Giella v Cassman Brown principles).
A party aware of another's interest in land cannot obtain a mandatory injunction pleaded in the guise of a temporary injunction.

Court orders

1.The application dated 22/3/2019 is dismissed with costs

Authorities

Legislation

Civil Procedure ActSections 1A, 2B, 3A
Civil Procedure RulesOrder 40

Cases cited (2)

Giella Vs Cassman Brown
(1973) EA 358
Mrao Ltd Vs First American Bank of Kenya Ltd
(2003) eKLR

Jurisdiction invoked: Sections 1A, 2B, 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ibrahim Nyongesa Ouma v Philip Namenge Opemi [2020] KEELC 747 (KLR)", Case Analysis (2020). Notice of motion dated 22/3/2019 (main suit over land parcel BUKHAYO/EBUSIBWABO/65). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/747/eng@2020-11-05

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