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ELCPartially AllowedEnvironment & Land Case E011 of 2022· [2022] KEELC 15209 (KLR)

Hanrietta Achieng Okumu t/a Osaka Timber Yard v Simarla & 2 others

Environment and Land Court
8 December 2022
AKA. Y. Koross
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Siaya court refused to stop a demolition that had already happened, but ordered an official boundary survey and froze further construction on the disputed land.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Siaya (A. Y. Koross, J) on the plaintiff's notice of motion dated 13/07/2022 in a suit claiming adverse possession over Uholo/Ugunja/559, registered in the name of the 1st defendant. The plaintiff, who ran a timber yard on the property from 2008, sought an inhibition on registrations and a temporary injunction restraining the defendants from evicting her, demolishing her structures or interfering with her possession, alleging the 2nd and 3rd defendants demolished her developments in June 2022. The 2nd and 3rd defendants opposed, asserting the 1st defendant died over ten years ago, that the 3rd defendant was a tenant of the 1st defendant's widow, and that the plaintiff had vacated. Applying Giella v Cassman Brown, the court found the plaintiff had established neither a prima facie case with probability of success nor irreparable harm not compensable in damages. It distinguished Francis Kibii Cherutich, holding an injunction cannot restrain an event that has already occurred, the demolition having taken place. It declined orders against the 1st defendant, a suit against a deceased person being a nullity. Noting the plaintiff's adverse possession claim and the probability of encroachment and a boundary dispute among adjacent parcels, the court ordered the district land registrar and surveyor to ascertain the boundaries of Uholo/Ugunja/559, 560 and 3299 at the plaintiff's cost, restrained further construction by the 2nd and 3rd defendants pending the suit, ordered costs in the cause, and directed mention for directions on 15/02/2023.

Key legal issues

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01

Whether the plaintiff was entitled to a temporary injunction and inhibition

Holding

No - the plaintiff failed to establish a prima facie case or irreparable harm, and the demolition she sought to restrain had already occurred

Reasoning

Applying Giella v Cassman Brown, the court found the plaintiff was no longer in occupation of the suit property, the demolition had already taken place, and an injunction cannot restrain a completed event. The parties' accusations and counter-accusations and the possibility of a boundary dispute required determination at the main hearing.

p. 6
02

Whether orders could issue against the 1st defendant

Holding

No - the 1st defendant was allegedly deceased and a suit against a deceased person is a nullity

Reasoning

The 1st defendant, the registered proprietor, did not participate and his silence lent credence to assertions that he died over ten years ago. Relying on Geeta Bharat Shah, the court held a suit against a deceased person is a nullity and declined to grant orders against him.

p. 5
03

Whether any preservation orders were warranted

Holding

Yes - status quo preservation via a boundary survey and a bar on further construction by the 2nd and 3rd defendants

Reasoning

Given the plaintiff's adverse possession claim and the probability that the 2nd and 3rd defendants, occupants of adjacent parcels, may have encroached on the suit property, the court found preservation of status quo pending the main suit appropriate, ordering a boundary ascertainment and restraining further construction.

p. 6

Legal principles established

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  • A suit against a deceased person is a nullity and is only sustainable against his estate
  • An injunction cannot be granted once the event intended to be injuncted has been overtaken by events

Court orders

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  1. 1.The district land registrar and district land surveyor within Ugunja/Ugenya Sub County shall survey and ascertain the boundaries between Uholo/Ugunja/559, Uholo/Ugunja/560 and Uholo/Ugunja/3299, their costs borne by the plaintiff
  2. 2.Pending the hearing and determination of the suit, no constructions or further constructions or development on the suit property by the 2nd and 3rd defendants
  3. 3.Costs shall be in the cause
  4. 4.Suit to be mentioned for directions on 15/02/2023

Authorities

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Legislation

  • Land Registration Actsection 68(1)
  • Civil Procedure RulesOrder 40 rules 1, 2 & 4
  • Civil Procedure Actsections 1A, 1B, 3A, 63(c) and (e)

Cases cited (13)

  • Giella v Cassman Brown & another
    [1973] EA 358

    Principles for granting temporary injunctions: prima facie case, irreparable harm, balance of convenience

  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    [2003] KLR 125

    Definition of a prima facie case; judicial discretion in interlocutory injunctions

  • Karak Brothers Company Limited v Burden
    [1972] AllER 1210

    Injunction may issue against a person in occupation who cannot show lawful occupation

  • Francis Kibii Cherutich v John Mbuthia & 2 others
    [2013] eKLR

    Injunction against persons in occupation without arguable claim; distinguished on its facts

  • Panari Enterprises Limited v Lijoodi & 2 others
    [2014] eKLR

    Damages are not always a suitable remedy where a clear legal right is established

  • Benson Ochieng Opiyo v John Otieno Nyadero
    [2021] eKLR

    Balance of convenience favouring party in possession

  • Pius Kipchirchir Kogo v Franklin Kimeli Tenai
    [2018] eKLR

    Irreparable injury requirement and balance of convenience

  • Nguruman Limited v Jan Blonde Nielsen & 2 others
    [2014] eKLR

    Principles guiding grant of temporary injunctions

  • Japhet Nzila Muangi v Hamisi Juma Malee
    [2022] eKLR

    Suit against a deceased person is a nullity

  • Geeta Bharat Shah & 4 others v Omar Said Mwatayari & another
    Civil Appeal No. 46 of 2008, (2009) eKLR

    Suit filed against a dead person is a nullity

  • Stanley Kirui v Westlands Pride Limited
    (2013) eKLR

    Court cannot injunct what has already happened

  • Mavoloni Company Ltd v Standard Chartered Estate Management Ltd
    Civil Appeal No 266 of 1997 (1997) LLR 5086

    Injunction cannot be granted once the event has been overtaken by events

  • Esso Kenya Ltd v Mark Makwata Kiya
    Civil Appeal No 69 of 1991

    Injunction cannot issue to restrain an event that has taken place

Jurisdiction invoked
Section 63(c) and (e) of the Civil Procedure Act, Order 40 rule 1 of the Civil Procedure Rules and section 68 of the Land Registration Act

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, "Hanrietta Achieng Okumu t/a Osaka Timber Yard v Simarla & 2 others", Case Analysis (2022). Environment & Land Case E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15209/eng@2022-12-08

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