Jeremiah Arnold Opande Arodi & another (suing as through their Attorney Nicodemus Atito Arodi) v Washington Jakoyo Midiwo [2021] KEELC 1983 (KLR)
The bottom line
#The Environment and Land Court in Busia ordered a property buyer to vacate disputed Kisumu land pending trial, even though the case wasn't a 'clear case'.
What this practically means
#Executive summary
#Key legal issues
#Whether the interlocutory application met the threshold for a mandatory injunction
The court found the Applicants had demonstrated a prima facie case and that the balance of convenience favoured them as registered owners, and granted both the temporary and mandatory injunctions in terms of prayers (c) and (d).
The court held that although the dispute over how the Applicant lost possession was contentious and could only be resolved after full trial (so not a 'clear case' in the Kenya Breweries sense), ownership had not changed and rental income was ascertainable. Since the suit property remained the Applicants' and the Respondent's monetary interest was thereby secured, justice favoured restoring the parties' prior status pending determination. The Respondent could pursue his counterclaim for the sums paid.
Characterisation of the prayers sought
Prayer (c), though pleaded as a temporary injunction, was essentially mandatory as it sought to stop the Respondent 'remaining on' the property; prayer (d) was expressly mandatory.
The court analysed the substance of the prayers rather than their labels and determined that both required the higher threshold applicable to mandatory injunctions on interlocutory applications, requiring special circumstances and a high degree of assurance that the injunction would prove rightly granted at trial.
Legal principles established
#- A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases.
- A party in possession of land by consent cannot simply be characterised as a trespasser where the manner of loss of possession is contentious; disputes requiring evidence do not meet the 'clear case' standard, though the registered owner's balance of convenience may justify restoration of status quo.
Court orders
#- 1.Temporary injunction restraining the Defendant from trespassing upon and remaining on property No. KISUMU/MANYATTA 'A'/3304 and from interfering with the Plaintiffs' possession and rights pending hearing and determination of the suit
- 2.Mandatory injunction directing the Defendant to vacate the property known as No. KISUMU/MANYATTA 'A'/3304 and hand it over to the Plaintiff or the Plaintiff's agents pending hearing and determination of the suit
- 3.Each party to meet their respective costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property KISUMU/MANYATTA 'A'/3304; specific provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Arnold Opande Arodi & another (suing as through their Attorney Nicodemus Atito Arodi) v Washington Jakoyo Midiwo [2021] KEELC 1983 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1983/eng@2021-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.