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ELCDismissedNot stated in judgment (Eldoret ELC)· [2021] KEELC 1264 (KLR)

Shaban Kiplagat Kiprono v Florence Chepkor [2021] KEELC 1264 (KLR)

Environment and Land Court
6 October 2021
EOE.O. OBAGA
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 10th June 2021 in which the Plaintiff sought a temporary injunction restraining the Respondent/Defendant from dealing with LR No. Eldoret Municipality Block 21 King'ongo/639, or in the alternative maintenance of status quo, pending determination of a suit in which he claims adverse possession. The Applicant alleged he occupied and tilled the land with his family from 1998 until 1st March 2021, when he was evicted by the Respondent - administratrix of the estate of the registered owner, Appolo Ohanga Mbanda - accompanied by the Chief of Kibulgeny Location and police, without a court order; he also alleged one of his houses was burned. The Respondent countered that she and the deceased fenced and cultivated the land, that unknown persons (including the Applicant) had encroached after the deceased's death in 1999, that google maps showed the land fallow from 2010 to 2020, and that she had taken possession, ploughed and planted maize. The court framed a single issue: whether the Applicant met the threshold for an injunction. Applying Giella v Cassman Brown, Mrao and Nguruman, the court held the google maps evidence destroyed the claim of occupation since 1998, so no prima facie case was shown. Further, the Applicant had already been evicted, so there was nothing to restrain; damages would compensate him if he proved adverse possession. The balance of convenience favoured the Respondent, in possession and set to become registered owner by transmission. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant established a prima facie case for an interlocutory injunction

Holding

No - the Respondent's google maps evidence showed the suit property was fallow from 2010 to 2020, contradicting the Applicant's claim of occupation since 1998

Reasoning

Applying Giella and Mrao, the court examined whether the Applicant showed an apparent infringement of a right. The Respondent's google map evidence contradicted the Applicant's assertion of continuous occupation since 1998, showing the land fallow from 2010 to 2020. The Applicant therefore failed the first limb of the test, with no likelihood of success.

p. 2
02

Whether damages would be an adequate remedy and where the balance of convenience lies

Holding

Damages would adequately compensate the Applicant if he later proves adverse possession, and the balance of convenience favours the Respondent already in possession and set to become registered owner by transmission

Reasoning

The Applicant had already been evicted, so there was nothing left to restrain. If he ultimately proves adverse possession he will recover the land, and any sale would be compensable in value. It is a serious matter to restrain a registered proprietor absent justifiable grounds, and the balance of convenience favoured the Respondent.

p. 2

Legal principles established

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  • The Giella v Cassman Brown principles govern interlocutory injunctions: prima facie case, inadequacy of damages, balance of convenience
  • An injunction cannot be sought to restrain what has already happened

Court orders

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  1. 1.The Applicant's Notice of Motion dated 10th June 2021 dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Cases cited (3)

  • Giella =vs= Cassman Brown & Co.Ltd
    [1973] EA 358
  • Mrao Ltd =vs= First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nguruman Limited =vs= Jan Bonde Nielsen & 2 others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court original jurisdiction over land disputes (interlocutory application)

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, "Shaban Kiplagat Kiprono v Florence Chepkor [2021] KEELC 1264 (KLR)", Case Analysis (2021). Not stated in judgment (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1264/eng@2021-10-06

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