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ELCAllowedNot stated in the judgment (interlocutory Notice of Motion dated 12th October 2021 filed with the Plaint)· [2022] KEELC 1257 (KLR)

Paul Getuma Bungu & 2 others v Kisii National Polytechnic – (Formerly Known as Gusii Institute of Technology) & 3 others [2022] KEELC 1257 (KLR)

Environment and Land Court
24 February 2022
2,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, sons and legal representatives of the late Jackson Ongata Bungu, claimed long occupation (over 70 years) of an unsurveyed residential plot in Kisii Municipality adjoining parcel KISII MUNICIPALITY/BLOCK 111/252 occupied by the 1st Defendant, Kisii National Polytechnic. In October 2021 the 1st Defendant, relying on a recently issued Certificate of Lease allegedly founded on a defective Part Development Plan, began erecting a perimeter wall and threatened eviction. Together with the Plaint, the Plaintiffs moved by Notice of Motion dated 12th October 2021 seeking a temporary injunction and an order that the Land Registrar and County Surveyor visit, ascertain and fix the boundaries and file a report. The 1st Defendant opposed, contending it lawfully owned 16.95 hectares, that the Plaintiffs had encroached and grabbed a road reserve, and that their allotment letter did not cover the unsurveyed plots. Applying Giella v Cassman Brown, the court found a prima facie case with probability of success: the Plaintiffs showed long occupation, an allotment letter, a 1997 letter from the polytechnic's predecessor directing the boundary be respected, rent receipts and photographs. Irreparable loss was also established, since eviction from their lifelong home would not be compensable in damages, and the balance of convenience tilted toward the Plaintiffs. Invoking Sections 18 and 19 of the Land Registration Act, and noting the 1st Defendant's agreement, the court directed boundary fixation by the Registrar and Surveyor with a report and sketch plan within 60 days. The application was allowed in its entirety; survey costs to be shared equally and application costs in the cause.

Key legal issues

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01

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

Holding

Yes - the Plaintiffs demonstrated long occupation of the suit property and that their rights were under serious threat of imminent eviction.

Reasoning

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.

p. 3
02

Whether the Plaintiffs would suffer irreparable loss not compensable by damages

Holding

Yes - eviction from their lifelong home before trial would cause loss incapable of compensation in damages.

Reasoning

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.

p. 3
03

Balance of convenience

Holding

Not necessary to decide, but in any event it tilts in favour of the Plaintiffs given their long possession.

Reasoning

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.

p. 3
04

Whether the court should order boundary fixation by the Land Registrar and County Surveyor

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.The costs of the survey to be shared equally by the parties.
  4. 4.Costs of the application to be in the cause.

Authorities

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Legislation

  • Technical and Vocational Education ActNo. 29 of 2013
  • Land Registration ActSections 18 and 19

Cases cited (3)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Mbuthia Vs Jimba Credit Corporation Ltd
    (1988) KLR 1
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; not expressly stated in the judgment

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, "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.