Church of God in East Africa (Kenya) (suing through Rt. Rev James Obunde, Rev. Wycliffe Omusebe, Rev. Raphael Muyele, Rev. Monicah Opanga, Rev. Benson Maosa and Mr. William Shimanyula (The Registered Trustees of Church of God in East Africa (Kenya) v Hussein Somo [2021] KEELC 1501 (KLR)
The bottom line
#A Nairobi court protected a church that has occupied disputed land for 22 years, barring the other claimant from interfering until the full case is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff met the Giella v Cassman Brown threshold for a temporary injunction
Yes - the plaintiff established a prima facie case with probability of success and the balance of convenience tilted in its favour as the party in possession for over 22 years.
The court applied the Giella v Cassman Brown principles as explained in Mrao Ltd v First American Bank of Kenya Ltd on what constitutes a prima facie case. The plaintiff's claim to have been in possession of the suit land for over 22 years was unchallenged, a church and other structures exist on the property, and demolition would cause irreparable loss. Whether the parties claim the same parcel was left for trial, with the status quo to be maintained in the meantime.
Who should bear the costs of the application
Costs of the application were ordered to abide the outcome of the main suit rather than being awarded to either party.
Although the plaintiff sought costs against the defendant, and the second framed issue was costs, the court declined to make an immediate award. Since the dispute over whether the parties are claiming the same parcel was reserved for trial, the court found it appropriate that the costs question await the outcome of the main suit.
Legal principles established
#- Where a party is in uninterrupted possession of land and structures on it exist, that party stands to suffer irreparably if the structures are demolished, and the balance of convenience favours the party in possession pending trial.
- An unchallenged claim of long possession supports a prima facie case for temporary injunction.
Court orders
#- 1.Temporary injunction granted in terms of prayer no. 3 of the notice of motion, restraining the defendant from entering, remaining, using, occupying, possessing, evicting, fencing, constructing, subdividing or otherwise interfering with the plaintiff's parcel of land known as Plot No. E off General Waruinge Street-Pumwani pending the hearing and determination of the suit
- 2.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Order 40 rules 1, 2, 3 and 4 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Church of God in East Africa (Kenya) (suing through Rt. Rev James Obunde, Rev. Wycliffe Omusebe, Rev. Raphael Muyele, Rev. Monicah Opanga, Rev. Benson Maosa and Mr. William Shimanyula (The Registered Trustees of Church of God in East Africa (Kenya) v Hussein Somo [2021] KEELC 1501 (KLR)", Case Analysis (2021). Notice of Motion dated 28th April 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1501/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.