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ELCDismissedNotice of motion application dated 23.8.2021· [2022] KEELC 1352 (KLR)

Catherine Aluvisia Ochoki v Roselyn Dola Ouko & 2 others [2022] KEELC 1352 (KLR)

Environment and Land Court
16 February 2022
LMLUCY N. MBUGUA
466 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to stop a widow from using disputed land she has occupied for years, saying the real fight belongs at trial.

What this practically means

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Executive summary

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The Defendants/Applicants, administrators of the estate of the late Jason Atinda Ouko, registered owner of parcel LR No. 3589/6, moved the court by notice of motion dated 23.8.2021 seeking an interlocutory injunction to restrain the Respondent, her agents and proxies from interfering with, working on or developing 5 acres of the suit property pending hearing of the application and the suit. The Applicants contended that their father had on 10.3.1978 agreed to sell 5 acres to one James Ochoki Ondima, who took possession after paying part of the purchase price of Kshs 90,000 but never paid the balance. The Respondent, in her replying affidavit, averred that her husband purchased the suit property from Jason Atinda Ouko, that the purchase price was fully paid, and that she had developed and been in occupation of the 5 acres for years, requiring no consent from the Applicants, and she sought dismissal of the suit. Considering the application, the court noted that on the Applicants' own affidavit the Respondent took possession of the property years ago, so an injunction would only convolute the dispute. Emphasising that an injunction is a discretionary remedy, and that directions had been taken and the matter scheduled for hearing on 16.5.2022, the judge exercised her discretion against granting any orders, holding the parties would ventilate their cases at trial. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether to grant an interlocutory injunction over land already in the respondent's possession

Holding

The application was dismissed; the court declined to grant the injunction in the exercise of its discretion

Reasoning

The court observed that on the applicants' own affidavit the respondent took possession of the suit property years ago pursuant to a 1978 sale agreement. In such circumstances an injunction would merely convolute the dispute. Since the suit was already scheduled for hearing, the applicants would have an opportunity to ventilate their case at trial, and the discretionary remedy of injunction was therefore refused.

p. 1

Legal principles established

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  • An injunction is a discretionary remedy, and where the respondent has already taken possession of the disputed land, an interlocutory injunction would only convolute the dispute, with the parties' positions best ventilated at trial

Court orders

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  1. 1.The notice of motion application dated 23.8.2021 is dismissed with costs to the Plaintiff/Respondent
Jurisdiction invoked
Original civil jurisdiction over land dispute concerning LR No. 3589/6

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, "Catherine Aluvisia Ochoki v Roselyn Dola Ouko & 2 others [2022] KEELC 1352 (KLR)", Case Analysis (2022). Notice of motion application dated 23.8.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1352/eng@2022-02-16

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