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ELCPartially AllowedELC Case (application dated 12/3/2021), Kitale· [2021] KEELC 3455 (KLR)

Big Tree Farm Limited v Richard Muhindi & 22 others [2021] KEELC 3455 (KLR)

Environment and Land Court
5 May 2021
MNMwangi Njoroge
1,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze a disputed land as it was, ruling that when evidence is unclear, keeping things unchanged until full trial is fairest.

What this practically means

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Executive summary

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The defendants in a land dispute over portions of Title LR No. 8986 moved the Environment and Land Court at Kitale by a notice of motion dated 12/3/2021 under Sections 3A and 63(e) of the Civil Procedure Act and Order 40 Rule (1) of the Civil Procedure Rules, seeking to restrain the plaintiff from wasting, damaging, alienating, selling or disposing of the suit property and trees, and to maintain the status quo pending hearing of the suit. The defendants claimed to be bona fide purchasers from Gladys Nakhumicha Wabuge, Jeoffrey Kilwake Wabuge and Gabriel Wabuge — heirs of the late Wafula Wabuge — and alleged the plaintiff was secretly selling trees and leasing the land. The plaintiff, a registered owner company, denied the land ever belonged to Wafula Wabuge, contended that transactions between 1981 and 2015 while the land was charged were void, and asserted freedom to deal with its property. Applying the Giella v Cassman Brown tests, the court found itself in doubt whether a prima facie case or irreparable loss was demonstrated, but held that the balance of convenience favoured preserving the status quo pending trial. Prayers (3) and (4) were granted, costs were left in the cause, and directions were issued for the filing of bundles of documents within 14 days, with a mention on 3/6/2021 for fixing a hearing date.

Key legal issues

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01

Whether the defendants met the Giella v Cassman Brown tests for an interlocutory injunction

Holding

The court was in doubt whether a prima facie case and irreparable loss were shown, but granted the injunction on the balance of convenience to preserve the status quo pending trial

Reasoning

The court applied the Giella v Cassman Brown two-pronged tests of prima facie case and irreparable injury. On the evidence, the plaintiff held title while the defendants had purchased from persons now having a stake in the plaintiff's company and had fully developed the land. Unable to resolve the weighty legal issues at interlocutory stage and finding the defendants would suffer some loss, the court turned to the balance of convenience, which favoured preserving the status quo pending full trial.

p. 2

Legal principles established

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  • Where prima facie case and irreparable loss are in doubt, the court may decide an interlocutory injunction on the balance of convenience by preserving the status quo pending trial

Court orders

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  1. 1.Prayers Nos (3) and (4) in the application dated 12/3/2021 granted
  2. 2.Costs of the application shall be in the cause
  3. 3.Plaintiff to file and serve a comprehensive indexed and paginated bundle of documents within 14 days
  4. 4.Defendants to file and serve their bundle of documents within 14 days of the last date the plaintiff's bundle was due
  5. 5.No party to time any documents outside the timelines without prior leave of court formally applied for
  6. 6.Suit to be mentioned 3/6/2021 for fixing of a hearing date

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 40 Rule (1)

Cases cited (1)

  • Giella –vs- Cassman Brown
    [1973] EA 358
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act and Order 40 Rule (1) of the Civil Procedure Rules

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, "Big Tree Farm Limited v Richard Muhindi & 22 others [2021] KEELC 3455 (KLR)", Case Analysis (2021). ELC Case (application dated 12/3/2021), Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3455/eng@2021-05-05

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