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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 27th November 2020)· [2021] KEELC 2263 (KLR)

Ethics & Anti-Corruption Commission v Charles Gekonde Otara & 6 others [2021] KEELC 2263 (KLR)

Environment and Land Court
28 July 2021
2,663 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze all dealings with disputed public land in Kisii but let the 46-year occupants stay put until the case is decided.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission, as Plaintiff, moved the Environment and Land Court at Kisii by Notice of Motion dated 27th November 2020 seeking interim injunctions restraining the 3rd and 5th Defendants from alienating, selling, charging, leasing, developing, sub-dividing, wasting, transferring or disposing of parcels known as Kisii Municipality/Block 11/112 and 169 pending the hearing and determination of the suit. The Plaintiff's investigator, Margaret Matheka, deponed that Gusii County Council irregularly caused green cards to be opened over land that was public land reserved for Government houses in the Milimani Government quarters, and that the two parcels overlap on the ground. The leases were allegedly issued null and void ab initio to the 1st and 4th Defendants, with subsequent transfers to the 2nd, 3rd and 5th Defendants. The 1st to 3rd Defendants, through a replying affidavit of Dr. Charles Gekonde Otara, traced their acquisition to allotments by the Commissioner of Lands, development of a hospital and residence, and maintained the property is their only home. Counsel filed written submissions. The court framed a single issue: whether the Plaintiff met the Giella v Cassman Brown threshold. It found a prima facie case with serious questions to be tried, held that damages would not be an adequate remedy where illegality is alleged, but on the balance of convenience - given the Defendants' 46-year occupation and the Plaintiff's failure to seek an ouster from occupation - ordered the status quo maintained: the Defendants remain in occupation but may not alienate, sell, charge, lease, develop, sub-divide, waste, transfer or dispose of the suit property pending determination of the suit. Costs were in the cause. The court also flagged the Defendants' concerns over non-joinder of the National Land Commission and the County Government of Kisii.

Key legal issues

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01

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

Holding

The Applicant satisfied the prima facie case limb because the documents annexed disclosed serious questions to be tried regarding the Defendants' acquisition of public land

Reasoning

The court applied Giella v Cassman Brown and Mrao v First American Bank. The Plaintiff alleged the suit property was public land reserved for Government houses, irregularly allocated. The court noted it was not its role to determine the validity of the Defendants' titles at the interlocutory stage, but found the annexed documents raised serious questions to be tried, sufficient for a prima facie case.

p. 3
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

Damages would not be an adequate remedy where the acts complained of may be unlawful

Reasoning

Relying on Said Ahmed v Mannaseh Benga, Aikman v Muchoki and Siro Mosioma v Housing Finance, the court held that where the Defendant's acts may be unlawful, the adequacy of damages does not fall for consideration; a party should not be allowed to retain an advantage gained by flouting the law simply because it can pay for it.

p. 3
03

Balance of convenience

Holding

The balance of convenience favoured maintaining the status quo - occupation continuing but no dealing with the land

Reasoning

The Defendants had been in occupation for 46 years and nothing suggested they intended to dispose of the property. The Plaintiff had not sought to stop occupation, only alienation. The court therefore ordered the status quo maintained pending determination of the suit, restraining alienation, transfer or charging.

p. 4

Legal principles established

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  • Where there is a breach of the law, an applicant for an injunction cannot be compelled to accept damages as compensation
  • A temporary injunction preserves the property in dispute pending disposal of the suit; where the court is in doubt it decides on a balance of convenience

Court orders

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  1. 1.Status quo prevailing as at the date of the ruling to be maintained pending the hearing and determination of the suit
  2. 2.Defendants to remain in occupation of the suit property but not to alienate, sell, charge, lease, develop, sub-divide, waste, transfer or dispose of Land Reference Number Kisii Municipality/Block 11/112 and 169
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Government Lands ActCap 280
  • Local Government ActCap 265

Cases cited (10)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Mrao v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Celestine Ann King & 4 Others v Said Hassan Mwatsumiro & 5 Others
    (2020) eKLR
  • Joseph Siro Mosioma v Housing Finance Company of Kenya Ltd & 3 Others
    (2008) eKLR
  • Ahmed v Mannasseh & Another
  • Kenya Anti Corruption Commission v Stanley Mombo Amuti
    (2011) eKLR
  • American Cyanamid Co (No.1) v Ethicon Ltd
    (1975 UKHL
  • Central Bank of Kenya & Another v Uhuru Highway Development Ltd & 4 Others
    (2000) eKLR
  • Said Ahmed v Mannaseh Benga & Another
    (2019) eKLR
  • Aikman v Muchoki
    (1984) KLR 353
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory relief pending the hearing and determination of the suit (inter partes Notice of Motion under the court's civil jurisdiction)

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, "Ethics & Anti-Corruption Commission v Charles Gekonde Otara & 6 others [2021] KEELC 2263 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 27th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2263/eng@2021-07-28

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