Gilbert Kipruto Menjo v Job Kiplimo Menjo & 3 others [2022] KEELC 940 (KLR)
The bottom line
#Kenya's Environment and Land Court refused an urgent injunction over family land but barred the owners from selling it until the case is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuits threshold
It did not; the grounds required scrutiny of documents to establish whether authority was given, making them issues of fact, not law
Applying Mukisa Biscuits and the Supreme Court's decision in KNCHR v AG, a preliminary objection must be a settled, crisp point of law. Determining whether the 1st Defendant had authority to swear a replying affidavit for co-Respondents would require calling for and scrutinizing documents, which per Obado v Oyugi converts the question into one of fact. The objection therefore failed.
Whether an interlocutory mandatory injunction should issue over NANDI/KAIBOI/38
No; the Plaintiff failed to establish special circumstances and a clear case, as it was not overwhelmingly clear the suit property was his matrimonial home
Relying on Kenya Breweries v Okeyo, a mandatory injunction at interlocutory stage is granted only in clear cases and where the court feels a higher degree of assurance. The evidence (search certificate) showed joint ownership by the 1st and 2nd Respondents, and whether the property was the Plaintiff's matrimonial home could not be established at that stage. However, the subject matter was preserved by a status quo order per Mugah v Kunga and Practice Direction 28(k).
Legal principles established
#- A preliminary objection must rest on a point of law; an issue requiring scrutiny of documents or evidence is one of fact and cannot sustain a preliminary objection
- A mandatory injunction at the interlocutory stage requires special circumstances and a higher degree of assurance than a prohibitory injunction
- Status quo orders should be issued to preserve the subject matter in land disputes pending determination
Court orders
#- 1.The Plaintiff's Preliminary Objection dated 21st January 2022 fails and is dismissed
- 2.The Plaintiff/Applicant's application dated 2nd December 2021 is disallowed with costs in the cause
- 3.Status quo before filing of suit, requiring the Defendant not to transfer the properties to third parties, be maintained pending hearing and determination of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land matters; Practice Directions on Proceedings in the Environment and Land Courts, paragraph 28(k)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbert Kipruto Menjo v Job Kiplimo Menjo & 3 others [2022] KEELC 940 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/940/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.