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ELCPartially AllowedNotice of Motion dated 5th July 2021 in Originating Summons dated 8th May 2019· [2021] KEELC 1468 (KLR)

Norah Kenduiywo v Christopher Kiplangat Terer [2021] KEELC 1468 (KLR)

Environment and Land Court
21 October 2021
MOM.C. Oundo
2,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Kericho Environment and Land Court froze the land dispute by preserving the status quo: the occupant stays on the portion she already occupies, but nobody may build, plant, or sell until trial.

What this practically means

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Executive summary

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This was a ruling on the Defendant/Applicant's Notice of Motion dated 5th July 2021 seeking a temporary injunction restraining the Plaintiff/Respondent from building, developing, planting trees, selling or otherwise interfering with his interest in land parcel LR No. Kericho/Itembe/924 pending hearing of her adverse possession suit. The Plaintiff claimed adverse possession of 0.6070 hectares on which she had established her home, and contended the application was an abuse of process, unsupported by evidence of any additional encroachment, and that the Applicant had established neither a prima facie case nor irreparable harm. The Applicant, relying on his registered title under Section 26 of the Land Registration Act and the Giella principles, argued that the Respondent had annexed further portions, fenced them and planted trees, and that the 12-year limitation period had not run since his registration in October 2015. Justice M.C. Oundo found the Applicant had established a prima facie case on the strength of his registered title, citing Mrao Ltd v First American Bank. Declining to determine the merits, the court interfered only in a limited manner: it defined the status quo as the parties' positions at filing of the Originating Summons - the Plaintiff remaining in possession of the portion she then occupied - while barring any further building, developing, planting of trees, selling or interference with the parcel, to persist until final determination, following Mugah v Kunga on preservation of the subject matter. Costs of the application were made costs in the cause.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

Yes - by virtue of his registered title to the suit land

Reasoning

The court noted there was no dispute that the Applicant was the registered proprietor of LR No. Kericho/Itembe/924, and relying on the registered title found a prima facie case established per Mrao Ltd v First American Bank. The court expressly declined to determine the merits of the adverse possession claim at the interlocutory stage.

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02

Whether to grant the injunction or maintain status quo

Holding

The court defined the status quo: the Plaintiff remains in possession of the portion she occupied when filing the originating summons, but no further building, developing, planting trees, selling or interfering is permitted

Reasoning

Balancing the parties' positions, the court found it unnecessary to grant the full injunction sought. It invoked the Court of Appeal's guidance in Mugah v Kunga and the practice direction giving discretion to order maintenance of status quo, interfering only in a limited manner to preserve the subject matter pending trial.

p. 3

Legal principles established

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  • The conditions for an interlocutory injunction are a prima facie case with probability of success, irreparable damage not compensable in damages, and, if in doubt, the balance of convenience
  • In land matters status quo orders should always be issued for purposes of preserving the subject matter

Court orders

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  1. 1.An order of status quo issued to be maintained by all parties, the Plaintiff/Respondent remaining in possession of the portion of land in parcel LR No. Kericho/Itembe/924 that she was in at the time of filing the Originating Summons
  2. 2.No further building, developing, planting trees, selling or interfering with parcel LR No. Kericho/Itembe/924 by any party
  3. 3.Status quo to be maintained until the matter is finally heard and determined
  4. 4.Costs of the application dated 5th July 2021 to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 27
  • Civil Procedure RulesOrder 40 Rules 1, 2(1); Order 51 Rule 1
  • Land Registration ActSection 26
  • Practice DirectionsGazette Notice No. 5178/2014 Practice Direction No. 28(k)

Cases cited (3)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Mugah –v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1, 2(1) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Norah Kenduiywo v Christopher Kiplangat Terer [2021] KEELC 1468 (KLR)", Case Analysis (2021). Notice of Motion dated 5th July 2021 in Originating Summons dated 8th May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1468/eng@2021-10-21

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