Ethics & Anti-Corruption Commission v Charles Gekonde Otara & 6 others [2021] KEELC 2263 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
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
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.
Whether the Applicant would suffer irreparable injury not compensable by damages
Damages would not be an adequate remedy where the acts complained of may be unlawful
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.
Balance of convenience
The balance of convenience favoured maintaining the status quo - occupation continuing but no dealing with the land
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.
Legal principles established
#- 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
#- 1.Status quo prevailing as at the date of the ruling to be maintained pending the hearing and determination of the suit
- 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.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.