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ELCPartially Allowed· [2022] KEELC 2129 (KLR)

Joseph K. Wakiaga & 2 others v Daniel Otieno Ojwelu & 2 others [2022] KEELC 2129 (KLR)

Environment and Land Court
19 January 2022
MKMOHAMMED N. KULLOW
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 17th August 2021, the Applicants/Plaintiffs sought temporary conservatory/preservatory orders of injunction restraining the Defendants, particularly the 1st Defendant, from interfering with their possession of a 3-acre portion of Original Title Number SUNA WEST/WASWETA II/115, allegedly subdivided without succession into numbers 6639, 6640, 7477 and 7478. The Applicants averred that their late father bought the portion in 1981 from the 1st Defendant's late father, took vacant possession, and had since used it for crops and blue gum trees; in 2017 the 1st Defendant allegedly transferred the original title to himself and subdivided it without instituting succession proceedings, and destroyed the Applicants' crops. The application was unopposed; the Defendants filed no response or submissions despite service. The court framed two issues: whether the Applicants met the requirements for a temporary injunction, and whether conservatory orders could issue. Applying Giella v Cassman Brown as elaborated in Mrao Ltd v First American Bank, the court found a prima facie case on the uncontroverted evidence of long possession; found irreparable harm not compensable in damages; and held the balance of convenience favoured the Applicants. However, applying the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Kithinji, it declined conservatory orders because the dispute was purely private with no public-law connotation. The court granted a temporary injunction restraining the 1st Defendant from interfering with the Applicants' possession, occupation and use of the suit property pending hearing and determination of the suit, and directed the parties to comply with Order 11 within 14 days.

Key legal issues

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01

Whether the Giella v Cassman Brown conditions for a temporary injunction were met

Holding

All three conditions were satisfied: prima facie case, irreparable harm not compensable in damages, and balance of convenience tilting in favour of the Applicants; a temporary injunction was granted against the 1st Defendant

Reasoning

The Applicants had been in open, peaceful and uninterrupted possession and use of the 3-acre portion since 1981, evidenced by photographs of crops and trees. The 1st Defendant's alleged transfer and subdivision of the title without succession, and destruction of crops, stood uncontroverted since the application was unopposed. Loss from eviction could not be quantified in monetary terms, and the balance of convenience favoured the Applicants.

p. 3
02

Whether a conservatory order could issue in a private land dispute

Holding

No - conservatory orders bear a public law connotation and are inappropriate where the dispute is purely private with no public interest or constitutional values at stake

Reasoning

Relying on the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court held that conservatory orders facilitate ordered functioning within public agencies and are not linked to private-party issues of irreparable harm. Since the suit property was private property and the dispute purely inter partes with no public interest or constitutional values arising, the conservatory orders sought could not be granted.

p. 4

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case disclosing an apparently infringed right calling for an explanation or rebuttal from the opposite party
  • Conservatory orders bear a public law connotation and are not linked to private-party irreparable harm considerations, unlike interlocutory injunctions

Court orders

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  1. 1.The 1st Defendant/Respondent by himself, servants, agents or otherwise howsoever is restrained from interfering with the Plaintiffs/Applicants' possession, occupation and use of the portion of the suit property Original Title Number SUNA WEST/WASWETA II/115 now subdivided into 6639, 6640, 7477 and 7478 measuring 3 acres pending the hearing and determination of the suit
  2. 2.Parties directed to comply with Order 11 within 14 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 40(1)(2)
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (8)

  • Giella vs Cassman Brown and Co. Ltd
    [1973] EA. 358
  • Mrao Ltd vs First American Bank of Kenya and 2 Others
    [2003] KLR 125
  • East Africa Industries Limited vs Trufoods Ltd
    [1972] EA 420
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR; Civil Appeal No. 77 of 2012 (Nairobi)
  • Charter House Investment Limited vs Simon K. Sang and 3 Others
    [2010] eKLR (Eldoret)
  • American Cynamide Co. vs Ethicon Limited
    [1975] AC 396; [1975] 2 W.L.R. 316
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Other
    (2014) eKLR
Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015 and Order 40(1)(2) of the Civil Procedure Rules

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, "Joseph K. Wakiaga & 2 others v Daniel Otieno Ojwelu & 2 others [2022] KEELC 2129 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2129/eng@2022-01-19

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