Gabriel Onsongo Okondo & 10 others v Sangiri Ole Kiok & 2 others [2020] KEELC 931 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Entitlement to an interlocutory injunction pending determination of the suit
Injunction refused; no prima facie case established because the dispute is an undetermined boundary dispute, and status quo was directed instead under Rule 32 of the ELC Practice Directions.
Both parties are registered proprietors in occupation of their respective parcels. The suit's fulcrum is a boundary dispute; the Land Registrar's reports are yet to be presented in court. Applying Giella v Cassman Brown, the first limb fails since no clear demarcation exists between the parcels. The court therefore directed maintenance of the status quo, each party remaining on its portion, and did not reach the second and third Giella limbs.
Whether the 3rd Plaintiff was in contempt of the order of 2nd March, 2020
Contempt not proved; the application for committal was dismissed.
Contempt proceedings are criminal in nature and the burden lies on the applicant. The applicant failed to specify when the trespass by grazing occurred, did not controvert the denial of grazing, and the boundary between the parcels remains undemarcated so the alleged breach could not be established. Applying the four elements in North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi and section 29 of the ELC Act, the allegations were not proved to the required standard.
Costs of the two applications
Costs were made costs in the cause.
Having dismissed both applications as unmerited, the court exercised its discretion on costs by ordering that costs of the two applications be in the cause, deferring the question of costs to the outcome of the main suit.
Legal principles established
#- The four elements of civil contempt must be proved to the required standard, which is higher than in civil cases.
- Where the first Giella limb (prima facie case) fails, the court need not consider the remaining limbs as they are consequential.
- In interlocutory applications concerning land, parties are encouraged to agree on maintaining status quo, failing which the judge may order status quo pending determination of the suit.
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 23rd December, 2019 seeking an interlocutory injunction is disallowed.
- 2.The 1st Defendant's Notice of Motion dated 14th July, 2020 seeking committal of the 3rd Plaintiff for contempt is disallowed.
- 3.The obtaining status quo is to be maintained, with the 1st Defendant and the 3rd Plaintiff to remain on their respective portions of land pending the determination of the boundary.
- 4.Costs of the two applications to be in the cause.
- Jurisdiction invoked
- Environment and Land Court Act; Order 40 of the Civil Procedure Rules and Sections 1A, 1B & 3A of the Civil Procedure Act (applications brought thereunder)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gabriel Onsongo Okondo & 10 others v Sangiri Ole Kiok & 2 others [2020] KEELC 931 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/931/eng@2020-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.