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ELCPartially AllowedOriginating Summons dated 03/03/2021· [2022] KEELC 2759 (KLR)

Owit & another v Pambo & 4 others; Real People Kenya Limited (Intended Interested Party) (Environment & Land Case 19 of 2021) [2022] KEELC 2759 (KLR)

Environment and Land Court
14 July 2022
AKA. Y. Koross
2,015 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Siaya court protected two land parcels with an injunction, but refused relief against a party whose alleged charge lacked documentary evidence.

What this practically means

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Executive summary

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By originating summons dated 3 March 2021 the plaintiffs sought a declaration of adverse possession over South Sakwa/Barkowino/4352, later subdivided into 8761 and 8762. They claimed their late husband purchased a portion of South Sakwa/Barkowino/503 on 14 June 1980, took possession, and constructed rental units, but the transfer was never effected. After the subdivision, portions were transferred to the intended 4th and 5th defendants, who allegedly trespassed, demolished structures and constructed a cowshed. By a notice of motion dated 28 March 2022 under Orders 8 Rule 3 and 51 Rule 1, the plaintiffs sought a temporary injunction over parcels 8761 and 8762 and leave to amend the originating summons to join the intended 4th and 5th defendants and an interested party. None of the defendants opposed the motion. Applying Giella v Cassman Brown, the court found a prima facie case despite the uncertified Dholuo sale agreement, relying on photographs of demolished structures and a registered restriction; irreparable harm and balance of convenience also favoured the plaintiffs. It granted leave to join the intended defendants and to amend, but refused the relief insofar as it targeted the intended interested party, holding that submissions cannot replace evidence and the green card showed no charge. The court issued a temporary injunction against the 1st to 3rd defendants over the two parcels and ordered costs in the cause.

Key legal issues

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01

Temporary injunction - prima facie case, irreparable harm, balance of convenience

Holding

Plaintiffs satisfied all three Giella limbs

Reasoning

Purported Dholuo sale agreement lacked certified translation but photographs showed structures destroyed and a restriction was registered on 8762; uncontroverted possession and investment showed structures would waste away causing irreparable harm; balance of convenience favoured plaintiffs.

p. 4
02

Joinder and amendment of pleadings

Holding

Leave to join intended 4th and 5th defendants and amend granted; joinder of intended interested party refused

Reasoning

Order 1 Rule 10(2) and Order 8 Rule 3 permit liberal joinder necessary for complete adjudication without prejudice to parties, but the charge claimed against the intended interested party was not evidenced in the motion or green card.

p. 5

Legal principles established

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  • Submissions cannot take the place of evidence
  • Costs follow the event

Court orders

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  1. 1.Leave granted to join Vitalis Omondi Odhiambo and Erick Odiwuor Opot as 4th and 5th defendants
  2. 2.Leave granted to amend the originating summons
  3. 3.Amended originating summons to be filed and served within 21 days with return of service
  4. 4.Defendants granted leave to file replying affidavits within 21 days of service
  5. 5.Plaintiffs at liberty to file supplementary affidavit within 14 days of service
  6. 6.Temporary injunction restraining 1st-3rd defendants from dealing with South Sakwa/Barkowino/8761 and 8762
  7. 7.Mention for pretrial directions before the Deputy Registrar on 5/10/2022
  8. 8.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 8 Rule 3(1)

Cases cited (10)

  • Giella v Cassman Brown Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    Civil Appeal No. 39 of 2002 / [2003] eKLR
  • Kipchirchir Kogo versus Frank Kimeli Tenai
    [2018] eKLR
  • Charles Njagi Miriti v Leonard Mutembei Girishon & 3 others
    [2021] eKLR
  • Central Kenya Limited v Trust Bank Limited
    [2000] EALR 365
  • Sher Karuturi Limited v V/D Berg Roses Kenya Limited
    [2010] eKLR
  • Deynes Muriithi & 4 others v Law Society of Kenya & another
    [2016] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR
  • American Cyanamid vs Ethicon Limited
    [1975] AC 396
  • JMK v MWM & another
    [2015] eKLR
Jurisdiction invoked
Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules; Order 40 Rule 1 (temporary injunction); Article 162(2) ELC jurisdiction (original adverse possession claim)

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, "Owit & another v Pambo & 4 others; Real People Kenya Limited (Intended Interested Party) (Environment & Land Case 19 of 2021) [2022] KEELC 2759 (KLR)", Case Analysis (2022). Originating Summons dated 03/03/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2759/eng@2022-07-14

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