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ELCOtherNot stated in judgment· [2021] KEELC 2512 (KLR)

Charles Lukoye Shiyuka v James Muyanda Nduku & 2 others [2021] KEELC 2512 (KLR)

Environment and Land Court
21 July 2021
NMN. A. Matheka
911 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kakamega Environment and Land Court refused an injunction over disputed family land but ordered both sides to keep things exactly as they are until trial.

What this practically means

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Executive summary

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The applicant moved the court by a notice of motion dated 19th January 2021 under Order 40 rules 1, 2, 3 and 4 and Order 51 rule 1 of the Civil Procedure Rules 2010, seeking interim and interlocutory injunctions restraining the respondents from evicting him, trespassing on, entering, cultivating, disposing of, selling or interfering with land parcel Butsotso/Shikoti/2648, plus costs. He asserted that he had occupied the suit land for over 40 years, built a permanent residence and developed it extensively, and that the respondents, who became registered proprietors after succession, threatened to evict him, leaving him and his family landless. The respondents opposed the application as misconceived, explaining that the land was originally registered to the late Adriana Muyanda Maramba, who died on 11th February 2012, and is now jointly registered in their three names following succession proceedings in Kakamega HC Succession Cause No. 34 of 2014, in which an application by the applicant was dismissed with costs on 12th June 2019. They denied the applicant's occupation of the suit parcel, asserting he settled on Butsotso/Shikoti/14329 registered in his son's name. Applying the Giella v Cassman Brown principles and noting the equitable nature of interlocutory injunctions, the court declined the injunction, holding the application unmerited, but ordered that status quo be maintained pending hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

Whether the applicant satisfied the Giella v Cassman Brown principles for an interlocutory injunction over Butsotso/Shikoti/2648

Holding

The application was not merited; the court declined to grant the injunction and instead ordered maintenance of the status quo pending the hearing and determination of the suit.

Reasoning

The applicant claimed over 40 years' occupation and development of the suit land, while the respondents, registered proprietors through succession, denied his occupation and asserted he resided on Butsotso/Shikoti/14329 belonging to his son. The court observed that if the applicant was not on the suit land as alleged, the status quo could be maintained, and found the injunction application unmerited.

p. 2

Legal principles established

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  • An application for interlocutory injunction is considered within the principles in Giella vs Cassman Brown & Co Ltd: prima facie case with probability of success, irreparable loss not compensable in damages, and balance of convenience if in doubt.
  • An interlocutory injunction is an equitable relief which the court may decline where the applicant's conduct does not meet the approval of a court of equity.

Court orders

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  1. 1.Status quo be maintained pending the hearing and determination of this matter
  2. 2.Costs to be in the cause
Jurisdiction invoked
Order 40 rules 1, 2, 3 & 4 and Order 51 rule 1 of the Civil Procedure Rules 2010

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, "Charles Lukoye Shiyuka v James Muyanda Nduku & 2 others [2021] KEELC 2512 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2512/eng@2021-07-21

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