Paul Getuma Bungu & 2 others v Kisii National Polytechnic – (Formerly Known as Gusii Institute of Technology) & 3 others [2022] KEELC 1257 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
Yes - the Plaintiffs demonstrated long occupation of the suit property and that their rights were under serious threat of imminent eviction.
Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Plaintiffs, sons and legal representatives of the deceased allottee, had produced an allotment letter, a 1997 letter from the predecessor of the 1st Defendant directing that the boundary be respected, rent receipts and photographs of development. The court emphasised that at interlocutory stage it makes no final findings but the material showed a right apparently infringed calling for rebuttal.
Whether the Plaintiffs would suffer irreparable loss not compensable by damages
Yes - eviction from their lifelong home before trial would cause loss incapable of compensation in damages.
Relying on the Halsbury's definition of irreparable injury, the court noted the Applicants were born on the suit property, had lived there all their lives, and photographic evidence showed permanent houses and mature trees. Eviction from the only place they had known as home before a hearing would render them homeless and destitute; interlocutory injunction exists to preserve the subject matter pending trial.
Balance of convenience
Not necessary to decide, but in any event it tilts in favour of the Plaintiffs given their long possession.
Having satisfied the first two Giella conditions, the court did not need to consider the balance of convenience. It nonetheless held obiter that the balance tilts toward the Plaintiffs, who have been in possession for many years, and preservation of the subject matter pending trial serves the interests of justice.
Whether the court should order boundary fixation by the Land Registrar and County Surveyor
Yes - boundary determination is statutorily vested in the Land Registrar under Sections 18 and 19 of the Land Registration Act, and the 1st Defendant did not oppose the order.
The court held that where law vests power in a body, that body should be permitted to perform its duty before the court determines the matter. Since the 1st Defendant was agreeable to the Plaintiffs' proposal, the court directed the Registrar and Surveyor to visit, ascertain and fix the boundaries and file a report and sketch plan within 60 days.
Legal principles established
#- Where a statute vests a power in a body or institution, that body should be permitted to perform its duty before the court determines the matter.
- In an interlocutory injunction application the court does not make final findings of contested fact or law but weighs the relative strength of the parties' cases.
Court orders
#- 1.A temporary injunction restraining the Respondents from entering, trespassing onto, erecting any structures, evicting or interfering with the Plaintiffs/Applicants' possession, occupation and enjoyment of UNSURVEYED RESD PLOT-KISII MUNICIPALITY (INCLUSIVE OF UNSURVEYED PLOTS NOS. Z&Y) pending the hearing and determination of the suit.
- 2.The Land Registrar, Kisii County and County Surveyor directed to visit both parcels in the presence of the parties to ascertain the boundaries and the persons in occupation, cause the precise boundaries to be defined by survey and fix beacons, make a note in the requisite register that the boundaries have been fixed, and file a report in court together with a sketch plan within 60 days.
- 3.The costs of the survey to be shared equally by the parties.
- 4.Costs of the application to be in the cause.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Getuma Bungu & 2 others v Kisii National Polytechnic – (Formerly Known as Gusii Institute of Technology) & 3 others [2022] KEELC 1257 (KLR)", Case Analysis (2022). Not stated in the judgment (interlocutory Notice of Motion dated 12th October 2021 filed with the Plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1257/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.