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ELCDismissedNot stated in the excerpt· [2021] KEELC 1445 (KLR)

Isaac Kiprono Songok v Samuel Kiptingei & another [2021] KEELC 1445 (KLR)

Environment and Land Court
18 October 2021
MOM.A. Odeny
1,819 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to protect a Kshs. 32 million land investment because the buyer hid earlier court cases and could prove his loss in money.

What this practically means

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Executive summary

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The plaintiff, Isaac Kiprono Songok, applied for a temporary injunction restraining the defendant and the interested party from trespassing on, constructing on, alienating, selling or otherwise interfering with Title Number SOY/KAPSANG BLOCK 7 (NGOISA)/66 pending trial. He claimed he purchased the land in 2004 from Wilson Kipchumba Kirwa, took possession, developed it and had occupied it for over 12 years, founding his claim on adverse possession and section 28(f) of the Land Registration Act as an overriding interest. He relied on a sale agreement, photographs and a valuation report valuing his investments at Kshs. 32 million. The defendant denied the plaintiff's possession, asserting that Monica Ruto held the land amid a protracted ownership dispute, and noted the plaintiff had filed earlier suits (Eldoret ELC No. 27 of 2020 and CM ELC No. 127 of 2019, the latter withdrawn for lack of jurisdiction) which he had not disclosed. The interested party asserted the land belonged to the deceased William Kaptingei Kirwa and that a 2016 agreement showed the plaintiff had given vacant possession to a purchaser. Applying the Giella v Cassman Brown test as restated in Nguruman, the court found no prima facie case given conflicting occupation evidence and non-disclosure; the Kshs. 32 million valuation rendered loss quantifiable and not irreparable; and the balance of convenience favoured refusal. The application was dismissed with costs to the respondents; a contempt application dated 12th March 2021 had been abandoned earlier.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

No - conflicting evidence of ownership and occupation, undisclosed related suits, and sale agreements suggesting change of possession defeated the claim

Reasoning

The applicant claimed purchase in 2004 and over 12 years' continuous occupation based on adverse possession, but the respondent and interested party showed the sale agreement indicated vacant possession had been given away, the title remained in a deceased person's name, and multiple persons claimed occupation. The applicant also concealed prior suits over the same land, undermining candour. The court found the prima facie hurdle not passed.

p. 2
02

Whether the applicant would suffer irreparable injury not compensable in damages

Holding

No - the valuation report quantified the investments at Kshs. 32 million, rendering loss compensable

Reasoning

Applying the Kogo v Tenai definition, irreparable injury must be incapable of adequate compensation in damages. The applicant's own valuation report valued the developments at Kshs. 32 million, meaning any loss could be quantified and compensated. Reliance on the valuation therefore undermined rather than supported irreparable harm.

p. 3
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Where the balance of convenience lay

Holding

It tilted against granting the injunction, as the inconvenience to the respondents would be greater

Reasoning

Applying the balance-of-convenience test, the court found that if the injunction were granted and the suit dismissed, the inconvenience to the respondents would exceed that suffered by the applicant if the injunction were withheld and the suit succeeded. Combined with failure of the first two hurdles, the application could not stand.

p. 3

Legal principles established

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  • The Giella/Cassman Brown triple test as restated in Nguruman: prima facie case, irreparable injury, and balance of convenience, applied as separate sequential hurdles
  • An injunction is an equitable remedy requiring clean hands and full disclosure; an applicant who conceals related pending suits does not merit the discretion
  • Where loss is quantifiable (e.g. by valuation report), it is not irreparable and damages suffice

Court orders

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  1. 1.The application for temporary injunction is dismissed
  2. 2.Costs of the application to the respondents
  3. 3.The applicant's application dated 12th March 2021 for contempt of court was abandoned and marked as such

Authorities

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Legislation

  • Land Registration Actsection 28(f)
  • Civil Procedure RulesOrder 21(1)

Cases cited (3)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012 (2014) eKLR
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit land; interim relief sought under inherent civil procedure powers (no specific provision quoted)

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, "Isaac Kiprono Songok v Samuel Kiptingei & another [2021] KEELC 1445 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1445/eng@2021-10-18

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