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ELCAllowedNot stated in the judgment· [2021] KEELC 2702 (KLR)

Shadrack K. Chemirmir & another v Jeremy Kiptoo Kibogy & 3 others [2021] KEELC 2702 (KLR)

Environment and Land Court
6 July 2021
MOM. A. ODENY
1,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court stopped all construction and dealings on disputed Eldoret land until ownership is finally decided, protecting the applicants' registered claim.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determined a Notice of Motion dated 23rd March 2021 by the plaintiff/applicants seeking ex-parte and interlocutory temporary injunctions restraining the defendants/respondents from trespassing on, entering, using, leasing, dealing in or interfering with land parcel ELDORET MUNICIPALITY BLOCK 12/370 and the fixtures thereon, and from interfering with the lease agreement, pending the hearing and determination of the main suit. The application was canvassed by written submissions. The applicants claimed ownership, relying on a lease certificate, a letter of allotment dated 25th January 1993, payment receipts from Uasin Gishu County dated 2nd February 2021 and a Ministry of Lands letter dated 28th November 2018, and asserted that a structure they erected had been demolished and that the respondents had begun putting up temporary structures rented to tenants. The 1st respondent opposed, asserting that he was issued a title on 15th January 2003, has been in actual possession and paying rates since then, and argued that the orders sought amounted to a mandatory injunction and eviction, which cannot issue at the interlocutory stage. The court applied the Giella v Cassman Brown principles and Order 40 Rule 1 of the Civil Procedure Rules. Finding that an official search showed the property registered in the applicants' names and that continued construction could render the suit nugatory, the court found the threshold met and granted a temporary injunction to preserve the suit, with costs to the applicants.

Key legal issues

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01

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

Holding

The court found that a current search certificate showing the suit property registered in the applicants' names demonstrated a legal right deserving protection

Reasoning

Both sides produced lease certificates, but the applicants additionally annexed a current official search showing registration in their names, plus an allotment letter dated 25th January 1993 and payment receipts from Uasin Gishu County. This documentary evidence showed prima facie that the applicants have a legal right that ought to be protected, satisfying the first Giella principle.

p. 3
02

Whether the applicants would suffer irreparable harm if the injunction were not granted

Holding

Continued construction during the pendency of the suit could cause irreparable harm, since a party might later be forced to demolish permanent buildings

Reasoning

Both parties admitted structures existed on the land and annexed photographs showing recently constructed temporary structures. The court reasoned that if one party continued construction and the ownership dispute was later decided otherwise, that party might suffer irreparably when asked to demolish permanent buildings constructed during the pendency of the suit; damages would be an inadequate remedy.

p. 3
03

Statutory basis for temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules

Holding

The court applied Order 40 Rule 1, which permits a temporary injunction where property in dispute is in danger of being wasted, damaged or alienated

Reasoning

The court quoted Order 40 Rule 1, noting that where property in dispute in a suit is in danger of being wasted, damaged or alienated, the court may grant a temporary injunction to stay and prevent such wasting, damaging or alienation until disposal of the suit. The applicants' fears of continued construction and interference with the lease agreement engaged this provision.

p. 3

Legal principles established

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  • A temporary injunction preserves the substratum of the case so that the suit is not rendered nugatory when final orders are granted
  • The Giella v Cassman Brown test governs applications for temporary injunctions: prima facie case, irreparable loss not compensable by damages, and balance of convenience

Court orders

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  1. 1.A temporary injunction granted to preserve the suit pending the hearing and determination of the case
  2. 2.Costs of the application to the applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 40

Cases cited (6)

  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    (2016) eKLR
  • American Cyanamid Co. vs Ethicon Limited
    (1975) A AER 504
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Alex Wainaina T/A John Commercial Agencies vs Janson Mwangi Wanjihia
    (2015) eKLR
  • Stephen Kipkebut T/A Riverside Lodge and Rooms -vs- Naftali Ogola
    (2009) eKLR
  • Kenya Railways Corporation -vs- Thomas Ngutu and others
    (2009) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel ELDORET MUNICIPALITY BLOCK 12/370, under Order 40 of the Civil Procedure Rules (temporary injunctions)

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, "Shadrack K. Chemirmir & another v Jeremy Kiptoo Kibogy & 3 others [2021] KEELC 2702 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2702/eng@2021-07-06

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