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ELCPartially AllowedELC 77 of 2019 (injunction application dated 8th December 2020)· [2021] KEELC 3828 (KLR)

Christopher Chepkiyeng v Vincent Lelei & 3 others [2021] KEELC 3828 (KLR)

Environment and Land Court
17 March 2021
2,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret Environment and Land Court preserved the status quo on disputed land, blocking any sale, lease or change while the case continues.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a notice of application dated 8th December 2020 by the respondents/applicants seeking temporary injunctions to restrain Christopher Chepkiyeng, his servants, agents and sons from trespassing on, ploughing, building on or otherwise dealing with land parcel LELAN/KAPTALAMWA/261 pending hearing of the suit, together with an order for police compliance through the OCS Kapcherop. The applicants relied on a judgment in Eldoret HCC 87 of 1990 ordering substitution of the register in favour of Chepkiyeng Kimosop Kipyomos, and on evidence including a chief's letter and photographs showing the respondent's agents visiting the land, as well as a power of attorney granted over the property. The respondent opposed, contending the underlying judgment had not been executed since 1996 and that the claim was statutorily barred under sections 7, 17 and 4(4) of the Limitation of Actions Act. Applying the Giella v Cassman Brown principles, the court found a prima facie case, holding it could not at the interlocutory stage determine the validity of the unexecuted 1990 orders without summarily determining the suit. On irreparable injury, the court found the apprehension that the respondent might alienate or change the character of the land was tangible and demonstrable, not speculative. However, on balance of convenience, since the respondents were in occupation, the restraining orders sought would amount to constructive eviction. The court declined the injunction as prayed and instead ordered that the status quo be maintained, restraining the respondent from transferring, leasing or changing the character of the suit land pending determination of the case, with costs in the cause.

Key legal issues

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01

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

Holding

Yes - the applicants annexed a judgment in Eldoret HCC 87 of 1990 ordering substitution of the register and proof of the 2nd respondent's appointment as representative ad litem; the validity of those unexecuted orders could not be determined at the interlocutory stage

Reasoning

The applicants annexed a judgment in Eldoret HCC 87 of 1990 ordering the respondent's name deleted from the register and substituted with Chepkiyeng Kimosop Kipyomos, and proved the 2nd respondent's appointment as representative ad litem. The respondent argued the claim was statutorily barred under the Limitation of Actions Act. The court held it could not determine the validity of such orders at the interlocutory stage without summarily determining the whole suit, and therefore found a prima facie case established.

p. 3
02

Whether the applicants would suffer irreparable injury not adequately compensable by damages

Holding

Yes - the injury is tangible and demonstrable because the respondent may alienate, transfer or otherwise change the status of the suit land, rendering the suit academic

Reasoning

The court reasoned that if the respondent transferred the property, entered a sale agreement or subdivided it, the suit would become an academic exercise. Relying on Nguruman Limited v Jan Bonde Nielsen, the court held that speculative injury will not do, but here the injury was not speculative: the respondent had taken photographs of structures on the land, evidenced by the chief's letter, demonstrating a threat to change the ownership status of the suit land.

p. 3
03

Where the balance of convenience lies

Holding

Granting the restraining orders sought would amount to constructive eviction of the respondents who are in occupation; the lower risk of injustice lies in maintaining the status quo

Reasoning

Applying Amir Suleiman v Amboseli Resort Limited, the court was to opt for the lower rather than the higher risk of injustice. Since the respondents are in occupation of the property, restraining the respondent from the land would amount to constructive eviction and would not be in the interest of justice. The court therefore opted to preserve the suit property by ordering maintenance of the status quo pending hearing and determination of the case.

p. 3

Legal principles established

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  • The conditions for grant of an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience
  • A court should not, at the interlocutory stage, determine the validity of orders whose enforcement is in contention, as that would summarily determine the suit
  • Courts opt for the lower rather than the higher risk of injustice when responding to applications for interlocutory injunctive relief

Court orders

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  1. 1.That the status quo be maintained with the respondent restrained from transferring, leasing or changing the character of the suit land pending the hearing and determination of the case
  2. 2.That the costs of the application be in the cause

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 17 and 4(4)

Cases cited (5)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • Macharia Mwangi and Others v Davidson Mwangi
    Civil Appeal No. 26 of 2011
  • NGURUMAN LTD VERSUS JAN BONDE NIELSEN
    (2014) eKLR
  • R.J.R. MACDONALD V ATTORNEY GENERAL
    (1941) 1 S.C.R 311
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land LELAN/KAPTALAMWA/261 (interlocutory application in ELC 77 of 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Christopher Chepkiyeng v Vincent Lelei & 3 others [2021] KEELC 3828 (KLR)", Case Analysis (2021). ELC 77 of 2019 (injunction application dated 8th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3828/eng@2021-03-17

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