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ELCPartially AllowedNotice of Motion dated 26th January 2021 (filed 29th January 2021)· [2021] KEELC 1899 (KLR)

Sylvanus Wambura Kerese v Susan Menge Nyamohanga [2021] KEELC 1899 (KLR)

Environment and Land Court
29 September 2021
GOG.M.A. Ongondo
1,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court froze all activity on disputed family land, letting a son stay put while ownership is decided.

What this practically means

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Executive summary

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The applicant, Slyvanus Wambura Keres, moved the Environment and Land Court at Homa Bay by a Notice of Motion dated 26th January 2021, brought under Sections 3, 3A and 63(c) and (e) of the Civil Procedure Act and Order 40 Rule 1 and Order 51 of the Civil Procedure Rules, 2010. He sought a temporary injunction restraining the respondent, Susan Menge Nyamohanga, from selling, transferring, building, fencing, excavating, demolishing or erecting structures on LR No. Bugumbe/Mabera/914, plus a status quo order pending the hearing of the suit. He claimed to be the son of the deceased owner of the parent land, that the property devolved within the family, that the respondent obtained letters of administration and transferred the suit land to herself, and that he had acquired rights over the land by long open possession. The respondent denied that the applicant ever lived on the land, asserting that the deceased allocated him a different parcel which he even charged to Barclays Bank, and that the suit land was given to her late husband. Both counsel filed written submissions, each framing three issues and relying principally on the Giella v Cassman Brown conditions. The court held that the applicant had established a prima facie case with triable issues and a likelihood of irreparable damage, and confirmed its mandate under Section 13(7)(a) of the ELC Act to grant preservation orders. Exercising its discretion, the court granted, in lieu of the injunction sought, an order of status quo: the respondent shall not evict the applicant nor sell, charge, lease, dispose of or part with any portion of the suit land; the parties shall not erect permanent structures; and costs were ordered to be in the cause. Judgment was delivered at Homa Bay via email on 29th September 2021 by G.M.A. Ongondo, Judge.

Key legal issues

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01

Whether the applicant established a prima facie case and other conditions for interlocutory relief

Holding

The court found a prima facie case with triable issues and likely irreparable damage, but granted a status quo order in lieu of the injunction sought.

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the applicant demonstrated a prima facie case with triable issues and likelihood of irreparable damage. However, exercising its discretion and its mandate under Section 13(7)(a) of the ELC Act, the court preferred preserving the position of the parties through a status quo order until the suit is determined.

p. 2
02

Whether the court may grant a status quo order (lis pendens) in lieu of an injunction

Holding

The court adopted the lis pendens doctrine as set out in Ogada v Mollin and confirmed its statutory mandate to grant preservation and status quo orders.

Reasoning

Relying on Ogada v Mollin regarding the lis pendens doctrine and the court's power under Section 13(7)(a) of the ELC Act, the court held that preservation of the suit property pending determination is appropriate, and that this power is not excluded by the applicant having sought an injunction.

p. 2

Legal principles established

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  • The conditions governing temporary injunctions, including likely injury to the applicant, duration and costs, are meant to curb abuse of temporary injunctions
  • The temporary injunction is an equitable remedy within the flexibility and discretion of the court
  • This court has the mandate under Section 13(7)(a) of the ELC Act to grant preservation orders, which does not exclude a status quo order

Court orders

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  1. 1.The application dated 26th January 2021 determined in terms of an order of status quo over the suit land
  2. 2.Pending hearing and determination of the suit, the respondent shall not evict the applicant from the suit land
  3. 3.The respondent shall not sell, charge, lease, dispose of or part with any portion of the suit land
  4. 4.The parties shall not erect permanent structures on the suit land
  5. 5.Costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 3, 3A and 63(c) and (e)
  • Civil Procedure Rules, 2010Order 40 Rule 1 and Order 40 Rule 2
  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Environment and Land Court ActSection 13(7)(a)
  • Environment and Land Court Practice Directions, 2014Practice Directions number 33
  • Constitution of Kenya, 2010Article 7(3)(b)

Cases cited (10)

  • Giella -vs- Cassman Brown Company Ltd
    (1973) EA 358
  • Mrao Ltd -vs- First American Bank of Kenya Ltd and 2 others
    (2003) eKLR 125
  • DPP -vs- Justus Mwendwa Kathenge
    (2016) eKLR
  • Central Bank of Kenya and another =vs= Uhuru Highway Development Ltd and 4 others
    (1998) eKLR
  • Nguruman Ltd -vs- Jan Bonde Nielsen
    (2014) eKLR
  • Ogada -vs- Mollin
    (2009) KLR 620
  • Paul Gitonga Wanjau =vs= Githuthi Tea Factory Company and others
    (2016) eKLR
  • Tritex Industries Ltd and 3 others =vs= National Housing Corporation and another
    (2014) eKLR
  • Musa Angira Angira -vs- Industrial and Commercial Development Corporation
    (2015) eKLR
  • Meresa Akello (suing as administrator of the estate of Tingo Nyamatiko-Deceased) -vs- John Itembe Mucheria
    (2021) eKLR
Jurisdiction invoked
Sections 3, 3A and 63(c) and (e) of the Civil Procedure Act; Order 40 Rule 1 and Order 51 of the Civil Procedure Rules, 2010; Section 13(7)(a) ELC Act

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, "Sylvanus Wambura Kerese v Susan Menge Nyamohanga [2021] KEELC 1899 (KLR)", Case Analysis (2021). Notice of Motion dated 26th January 2021 (filed 29th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1899/eng@2021-09-29

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