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ELCPartially AllowedConstitutional Petition (Busia ELC), Notice of Motion dated 13th February 2022· [2022] KEELC 2827 (KLR)

Sundia v Akello & 3 others (Environment & Land Petition 03 of 2022) [2022] KEELC 2827 (KLR)

Environment and Land Court
29 June 2022
2,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan family that has lived on disputed land since 1932 won a court order protecting their possession until the full case is decided.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Bungoma (Boaz N. Olao J) determines a Notice of Motion dated 13th February 2022 in which Gabriel Onyachi Sundia, administrator of the estates of three deceased persons who were first registered proprietors of land parcel Samia/Luanda/Mudoma-1369, sought a conservatory injunction restraining Francis Tobias Akello (1st Respondent) from interfering with his possession pending determination of his constitutional petition. The Petitioner alleged the suit land was unlawfully amalgamated with the 1st Respondent's parcel following Tribunal proceedings and that eviction orders issued in Busia ELC Case No 44 of 2015 were due for execution against his family of over 200 people. The 1st Respondent opposed via grounds of opposition, characterising the application as a back door appeal following dismissal of the Petitioner's attempts to appeal out of time, and citing a long history of litigation over the land. The 2nd to 4th Respondents filed no responses. Applying Giella v Cassman Brown, Mrao and Nguruman, the Court held that the Petitioner's unrebutted affidavit evidence established a prima facie case, that eviction would cause irreparable injury not compensable in damages, and that the balance of convenience favoured the party in possession. The Court allowed the application, issued an injunction pending hearing of the Petition, ordered costs in the Petition, and directed that the Petition be heard and determined within twelve months failing which the injunction would lapse.

Key legal issues

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01

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

Holding

Yes; the Green Card showed the deceased as first registered proprietors since 1975 and the Petitioner's uncontroverted averments of long occupation sufficed

Reasoning

The Court applied Giella v Cassman Brown and Mrao v First American Bank. The Petitioner's supporting affidavit averments of occupation since 1932 were unrebutted, no Respondent filing a replying affidavit. The Green Card confirmed the deceased as first registered proprietors holding one-third shares each. At interlocutory stage the Court does not make final findings but weighs relative strength of the parties' cases.

p. 5
02

Whether the Petitioner would suffer irreparable injury not compensable by damages

Holding

Yes; eviction of over 200 people from their only home, with graves of their loved ones, would be injury damages cannot compensate

Reasoning

Relying on Nguruman Ltd v Jan Bonde Nielsen, the Court found the injury actual, substantial and demonstrable. The Petitioner and his family of over 200 people, including the elderly and school-going children, have occupied the land since 1932, erected homes including permanent structures and buried their dead there. Eviction and desecration of graves would be beyond monetary compensation.

p. 5
03

Balance of convenience

Holding

It tilts in favour of the Petitioner who is already in occupation and possession

Reasoning

Even if the Court were in doubt on the first two Giella limbs, the balance of convenience favours the party in actual possession. No prejudice was shown to the 1st Respondent, who is not in occupation. Preservation of the status quo pending trial serves the greater cause of justice.

p. 6

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for an explanation or rebuttal
  • Uncontroverted averments in a supporting affidavit stand as factual evidence against mere grounds of opposition
  • Denial of an injunction to a party in possession of land has the effect of dispossessing that party; injunctions preserve the subject property pending determination

Court orders

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  1. 1.Pending the hearing and final disposal of the Petition, an order of injunction issued injuncting the 1st Respondent, his agents, servants or any persons acting under his instructions from interfering with the Petitioner's peaceful possession and use of land parcel No Samia/Luanda-Mudoma/1369
  2. 2.Costs of the application to be in the Petition
  3. 3.Petitioner to ensure the Petition is heard and determined within twelve (12) months from the date of the ruling, failing which the injunction shall lapse unless extended for sufficient reasons
  4. 4.Petitioner to file and serve more legible copies of the Grants of Letters of Administration within 7 days of the delivery of the ruling

Authorities

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Cases cited (8)

  • Giella .v. Cassman Brown & Company Ltd
    1973 E.A 358
  • Mrao .v. First American Bank of Kenya Ltd & Others
    2003 KLR 125
  • Nguruman Ltd .v. Jan Bonde Nielsen & Others
    C.A Civil Appeal No 77 of 2012
  • Films Rover International & Others .v. Cannon Films Sales Otd
    1986 3 ALL ER 772
  • Daniel Kibet Mutai & Others .v. Attorney General
    C.A Civil Appeal No 95 of 2016 Eldoret [2019 eKLR]
  • George Orago .v. George Lewa Jagalo & Others
    C.A Civil Appeal No 62 of 2009 [2010 eKLR]
  • Silas Mugo Njoka & Others .v. Charles Nyaga Nthia & Others
    2017 eKLR
  • Mbuthia .v. Jimba Credit Corporation Ltd
    1988 KLR 1
Jurisdiction invoked
Original constitutional jurisdiction of the Environment and Land Court over land within Busia County; matter placed before it after Omollo J's recusal

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, "Sundia v Akello & 3 others (Environment & Land Petition 03 of 2022) [2022] KEELC 2827 (KLR)", Case Analysis (2022). Constitutional Petition (Busia ELC), Notice of Motion dated 13th February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2827/eng@2022-06-29

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