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ELCAllowedNot stated in the judgment· [2022] KEELC 286 (KLR)

Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi [2022] KEELC 286 (KLR)

Environment and Land Court
27 April 2022
TMT. Murigi
2,593 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 blocked a registered landowner from interfering with four acres a buyer claims he purchased, preserving the land until trial decides ownership.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 20th December 2021 in which the Plaintiff/Applicant sought an interim injunction restraining the Defendant/Respondent from trespassing on, grazing, cultivating, encroaching on or otherwise interfering with four acres out of LR Nzaui/Kilili/738 pending the hearing and determination of the suit. The Applicant relied on three sale agreements (1996-1997) under which he claimed to have purchased the four acres from the Respondent, and alleged that in December 2021 the Respondent burnt his live fence, closed his gate, denied him access to a water point and cultivated his land. The Respondent, who admitted being the registered owner of the whole parcel, denied executing the sale agreements, asserted continuous possession of the entire land, and argued that the balance of convenience favoured him. Applying the Giella v Cassman Brown principles, the court found that the Applicant had established a prima facie case with a probability of success, since his proprietary claim was anchored on sale agreements relating to parcel No. 738 and the dispute over ownership could only be resolved at trial. The court further found a real likelihood that the registered owner might transfer the land to third parties, rendering recovery difficult and the harm irreparable, and that the balance of convenience favoured maintaining the status quo. The application dated 20th December 2021 was allowed as prayed pending the hearing and determination of the suit, with costs as provided for in the prayers.

Key legal issues

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01

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

Holding

Yes. Although the Respondent is the registered owner, the Applicant's claim anchored on sale agreements is not baseless and constitutes a prima facie case.

Reasoning

The court accepted that the Respondent is the registered owner of the entire parcel. However, the Applicant produced sale agreements relating to parcel No. 738 and evidence of possession. At the interlocutory stage the court could not make final findings on contested ownership; it need only find a genuine and arguable case. On the material on record, the Applicant's claim to the four acres was legitimate and arguable.

p. 3
02

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

Yes. There is a real likelihood the suit land may be transferred to third parties, making recovery difficult.

Reasoning

The Applicant feared alienation or sale by the registered owner. The court found that although the Applicant is not the registered owner, transfer to third parties would make the recovery process difficult, so the harm could not be adequately compensated by an award of damages.

p. 4
03

Balance of convenience

Holding

It tilts in favour of maintaining the status quo on the suit property, since if the properties are not preserved they may be wasted away.

Reasoning

The court weighed the hardship to the Applicant if the injunction were refused against the hardship to the Respondent if granted, and concluded that preservation of the property until trial best serves the parties.

p. 4

Legal principles established

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  • The three Giella v Cassman Brown principles govern interlocutory injunctions: prima facie case, irreparable harm not compensable by damages, and balance of convenience
  • At the interlocutory stage the court does not make final findings of contested fact or law but weighs the relative strength of the parties' cases
  • Where there are serious conflicts of facts, the court should maintain the status quo until trial

Court orders

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  1. 1.An interim order of injunction prohibiting the Defendant/Respondent from trespassing into, grazing, cultivating/ploughing, encroaching or in any other manner interfering with the Plaintiff's lawful use and occupation of four acres comprised in LR Nzaui/Kilili/738 pending the hearing and determination of the suit
  2. 2.The application dated 20th December 2021 allowed as prayed pending the hearing and determination of the suit

Authorities

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Legislation

  • Judicature ActCap 8
  • The High Court (Practice and Procedure Rules)Part 1 Rule 3
  • Land Registration ActSection 26

Cases cited (14)

  • Propwa Company Limited Vs Justus Nyamo Gatondo & Another
    (2020) eKLR
  • Ndirangu Kariuki Vs Wellington Wanjau
    (2021) eKLR
  • Abubakar Salim Machiri Vs Machiri Y.S.M Mohammed
    (2021) eKLR
  • Twalib Hatayan & Another Vs Said Saggar Ahmed Al Heidy
    (2015) eKLR
  • Mrao Limited Vs First American Bank of Kenya & 2 Others
    (2003) eKLR
  • Pius Kipchirchir Kogo Vs Frank Kimeli Tenai
    (2018) eKLR
  • County Government of Tana River Vs Mohammed Gare Bulale & 3 Others
    (2021) eKLR
  • Ochola Kamili Holdings Limited Vs Guardian Bank Limited
    (2018) eKLR
  • Elizabeth Muthoni Hussein Vs Vikesh Jinit Shah
    (2018) eKLR
  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mbuthia Vs Jimba Credit Finance Corporation Ltd
    (1988) eKLR
  • Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd
    NBI HCCC NO 1118 of 2002
  • Virginia Edith Wambui Vs Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987 eKLR
  • Nguruman Limited Vs Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Judicature Act Cap 8 and the High Court (Practice and Procedure Rules) (Part 1 Rule 3) and all other enabling rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi [2022] KEELC 286 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/286/eng@2022-04-27

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