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ELCPartially AllowedNotice of Motion dated 3rd July 2020 (suit over Plot No. LR 21105 Kilifi - CR 27631, Roka)· [2021] KEELC 2414 (KLR)

Ivan Tomlison v Ibrahim Lugogo & 3 others [2021] KEELC 2414 (KLR)

Environment and Land Court
16 July 2021
JOJ. O. Olola
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won only partial protection: the court blocked any sale of the disputed plot but refused to evict long-standing occupants before trial.

What this practically means

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Executive summary

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The Plaintiff, Ivan Tomlison, moved the Environment and Land Court at Malindi by Notice of Motion dated 3rd July 2020 seeking a temporary injunction restraining the four Defendants from possessing, occupying, leasing, constructing on, wasting or alienating Plot No. LR 21105 Kilifi - CR 27631 at Roka, an eviction and vacant possession order against persons allegedly harvesting coral blocks on the land, police assistance to enforce those orders, and costs. He asserted he was the registered proprietor and that the Defendants had entered without authority. The Defendants, through a replying affidavit sworn by the 2nd Defendant, Charles Mbigo, opposed the application as inept and an abuse of process, averring that they and their families had occupied the land as squatters since 1993, were the first proprietors, and that the land, exceeding 300 acres, remains unsurveyed and unregistered. The Court applied the Nguruman triple test and the definition of a prima facie case in Mrao Ltd, holding that mandatory injunctions are rarely granted at the interlocutory stage save in the clearest of cases. The Plaintiff's supporting affidavit contained only generalized statements and did not show how or when he became owner or when the trespass allegedly began. The Court found no urgent necessity to restrain persons already in occupation and noted the Plaintiff may not have sued all occupants. It declined the injunction and eviction prayers but, in the interest of justice, restrained both sides from disposing of the suit property, granting an injunction against selling or alienating any portion of the suitland pending trial. Costs were reserved to the cause. Judgment delivered at Malindi on 16th July 2021.

Key legal issues

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01

Whether generalized averments suffice to establish a prima facie case for injunctive relief

Holding

No. The Plaintiff's supporting affidavit contained only generalized statements that did not show how or when he became owner or when the alleged trespass began, and could not merit mandatory or interim injunctive orders.

Reasoning

The Court examined paragraphs 4 and 5 of the supporting affidavit and found them to be generalized statements from which no clear picture emerged. The Defendants asserted long occupation as squatters since 1993, and the Plaintiff did not explain his acquisition of the property. On the Nguruman triple test, the Plaintiff failed to demonstrate a prima facie case, irreparable injury or balance of convenience.

p. 2
02

Whether a mandatory injunction evicting the Defendants could issue at the interlocutory stage

Holding

No. Save in the clearest of cases, mandatory injunctions are not granted at interlocutory stage because doing so would substitute a summary hearing for a fair trial.

Reasoning

Relying on Lucy Wangui Gachara v Minudi Okemba Lore, the Court held that mandatory injunctions at interlocutory stage are granted only in clear-cut cases. The Plaintiff's failure to plead or prove the manner and timing of his ownership and of the alleged trespass disentitled him to so drastic a remedy before trial.

p. 2

Legal principles established

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  • Courts are very reluctant to grant mandatory injunctions at the interlocutory stage save in the clearest of cases
  • An applicant for an interlocutory injunction must establish a prima facie case, irreparable injury, and the balance of convenience
  • A prima facie case requires evidence showing infringement of a right and probability of success at trial, a standard higher than an arguable case

Court orders

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  1. 1.An order of injunction restraining the Defendants from selling and/or alienating any portions of the suitland pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (3)

  • Lucy Wangui Gachara –vs– Minudi Okemba Lore
    (2015) eKLR
  • Nguruman Ltd –vs– Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mrao Ltd –vs– First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Inherent jurisdiction of the Court over land disputes and interlocutory applications in the pending suit

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, "Ivan Tomlison v Ibrahim Lugogo & 3 others [2021] KEELC 2414 (KLR)", Case Analysis (2021). Notice of Motion dated 3rd July 2020 (suit over Plot No. LR 21105 Kilifi - CR 27631, Roka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2414/eng@2021-07-16

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