Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 2 of 2021 (lead file: ELC Case No. 003 of 2021)· [2021] KEELC 2860 (KLR)

Japheth Ogendo Owuor v Evans Angweyi & 47 others [2021] KEELC 2860 (KLR)

Environment and Land Court
22 June 2021
854 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A registered landowner in Kenya lost an injunction because buyers with signed sale agreements, receipts, and long occupation convinced the court they deserved protection.

What this practically means

#

Executive summary

#
By consent, ELC Case No. 2 of 2021 and ELC Case No. 003 of 2021 were consolidated, with the latter as lead file. The plaintiff/applicant, registered owner of land parcel Kakamega/Sergoit/12 measuring 25.9 Ha (75 acres) since 1977, brought a notice of motion dated 1st February 2021 under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 63(e) and 3A of the Civil Procedure Act. It sought a temporary injunction restraining the defendants/respondents from dealing with, erecting structures on, cultivating or interfering with the suit land, an order compelling removal of structures, and police supervision of compliance. The applicant alleged the respondents had erected structures without knowledge or consent and laid unjustifiable claims of ownership, and that damages would not be an adequate remedy. The respondents did not dispute the applicant's registration but asserted they entered the land after acquiring portions from the applicant for valuable consideration under land sale agreements made on diverse dates, supported by payment receipts and photographs of their homesteads. Applying the Giella v Cassman Brown principles, and noting the equitable character of interlocutory injunctions, the court perused the documents and found some sale agreements dated as far back as 2005. It held the applicant had failed to establish a prima facie case and that the balance of convenience lay with the respondents. The application was dismissed with costs on 22nd June 2021 at Kakamega.

Key legal issues

#
01

Whether the applicant established a prima facie case for an interlocutory injunction

Holding

The application failed; although registration in the applicant's name was undisputed, the respondents showed sale agreements from about 2005, payment receipts and photographs of their homesteads, so no prima facie case was established

Reasoning

The court applied the Giella v Cassman Brown test. The applicant relied solely on registered ownership since 1977 and alleged illegal structures. The respondents did not dispute registration but claimed they entered after purchasing portions under land sale agreements made on diverse dates, some as far back as 2005, supported by payment receipts and photographs of homesteads. On those documents the court found the applicant had not demonstrated a prima facie case with probability of success, and that the balance of convenience favoured the respondents.

p. 3
02

Where the balance of convenience lay

Holding

The balance of convenience fell with the respondents who were in occupation of portions purchased for value

Reasoning

Having perused the land sale agreements, payment receipts and photographs of homesteads attached to the respondents' list of documents, the court concluded that the respondents had entered and developed the land on the strength of agreements with the applicant, some dating back to 2005. Removing them at the interlocutory stage would therefore inconvenience them more than the applicant, and the balance of convenience fell with the respondents.

p. 3

Legal principles established

#
  • Interlocutory injunction applications are determined on the Giella v Cassman Brown principles: prima facie case with probability of success, inadequacy of damages, and balance of convenience if in doubt
  • An interlocutory injunction is an equitable relief which may be refused where the applicant's conduct does not meet the approval of a court of equity

Court orders

#
  1. 1.The application dated 1st February 2021 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 3A

Cases cited (1)

  • Giella vs Cassman Brown & Co Ltd
    1973 E.A 358
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B(?) (as printed 'Section 1A & 1'), 63(e) and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Japheth Ogendo Owuor v Evans Angweyi & 47 others [2021] KEELC 2860 (KLR)", Case Analysis (2021). ELC Case No. 2 of 2021 (lead file: ELC Case No. 003 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2860/eng@2021-06-22

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