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ELCDismissedEnvironment & Land Case E013 of 2021· [2022] KEELC 4928 (KLR)

Adiema & another v Shisikani

Environment and Land Court
27 September 2022
DOD. O. Ohungo
1,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court refused to stop the defendant from using disputed land, ruling the plaintiffs should enforce the existing Court of Appeal judgment rather than file a new suit.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of South Kabras/Shamberere/3856 and 3855, moved the court by Notice of Motion dated 1st November 2021 seeking an interlocutory injunction restraining the defendant, registered proprietor of South Kabras/Shamberere/3882, from trespassing on, constructing on or dealing with their parcels pending the hearing of the main suit. The parcels were carved out of the former South Kabras/Shamberere/2650 pursuant to a judgment of the Court of Appeal in Kisumu Civil Appeal No. 3 of 2014, which ordered two acres hived off and transferred to the defendant. The plaintiffs alleged that upon receiving his title in October 2021 the defendant began assembling construction materials on their parcels to defeat justice. The defendant replied that the subdivision was clandestinely effected behind his back, that his occupation since 1984 fell within the plaintiffs' parcels, and that the suit was an attempt to appeal against the Court of Appeal decision, noting prior litigation in three other courts. Applying the Giella test as reiterated in Nguruman and Magondu, the court held the dispute was essentially about interpretation and enforcement of the Court of Appeal judgment, a matter for that appeal or the suit that led to it, since enforcement was entrusted to the court appealed from. The plaintiffs therefore failed to establish a prima facie case, and the other limbs of the test did not arise. The application was dismissed with costs to the defendant, the court expressly reserving the res judicata question for proper determination if raised properly.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established because the real dispute concerns enforcement of the Court of Appeal judgment, which should be pursued in that appeal or the underlying suit.

Reasoning

The court applied the Giella test as enunciated and reiterated in Nguruman. It noted the parties did not dispute the registration of the parcels, all created pursuant to the Court of Appeal judgment. The defendant contended the subdivision was done behind his back and contrary to the judgment; the plaintiffs filed no further affidavit or submissions to dispute this. The court held the proper forum for interpretation and enforcement of the appellate judgment is the appeal or the suit that led to it, so no prima facie case arose in the new suit.

p. 3
02

Whether the suit is res judicata

Holding

The court declined to determine res judicata at this stage as it was neither raised from the onset nor addressed at length.

Reasoning

The defendant argued the entire suit was res judicata given prior litigation in Kakamega ELC No. 6 of 2020, ELC No. 181 of 2015 and Butali PMC ELC No. 15 of 2020. The court expressly avoided deciding the issue, directing that parties properly place it before the court for determination.

p. 3

Legal principles established

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  • The Giella conditions are sequential hurdles; if no prima facie case is established, irreparable injury and balance of convenience need not be considered.
  • Disputes over interpretation and enforcement of an appellate judgment should be raised in that appeal or the suit from which it arose, not a fresh suit.

Court orders

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  1. 1.Notice of Motion dated 1st November 2021 dismissed with costs to the defendant
  2. 2.Res judicata issue left open for proper determination if properly placed before the court

Authorities

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Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358

    Principles for interlocutory injunctions: prima facie case, adequacy of damages, balance of convenience

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR

    Reiteration of the Giella injunction principles

  • Magondu v Koech & 3 others
    (Civil Appeal 140 of 2019) [2022] KECA 642 (KLR)

    Sequential application of the injunction test hurdles

Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); interlocutory application in pending suit

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, "Adiema & another v Shisikani", Case Analysis (2022). Environment & Land Case E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4928/eng@2022-09-27

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