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ELCPartially AllowedNot stated in the judgment· [2023] KEELC 302 (KLR)

Lekuam v Gichohi & another (Environment & Land Case E020 of 2021) [2023] KEELC 302 (KLR)

Environment and Land Court
19 January 2023
YAY. M. Angima
935 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled you cannot evict someone already living on disputed land with an injunction, but they still can't sell or develop it.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nyahururu delivered on January 19, 2023 by Y. M. Angima J in an appeal concerning Title No. Laikipia/Uaso Narok B/1378. By a notice of motion dated October 17, 2022, the Respondents sought review, variation or setting aside of an interim injunction granted to the Appellant on October 13, 2022, contending that the injunction amounted in effect to an eviction order since the 1st Respondent was in possession of the suit property, had cultivated wheat on it, and had buried her late son there. The Appellant opposed the application, asserting she was the rightful allottee, disputing the 1st Respondent's long possession (alleging she took advantage of the striking out of her suit to plant wheat around June 2022) and denying the existence of a grave on the property. The court framed a single issue: whether the Respondents had made out a case for variation, review or setting aside of the interim order. Finding that the 1st Respondent was in possession both when the injunction issued and currently, the court held that a party already in possession of disputed property cannot effectively be restrained from entering, using or occupying it, though such a party can be restrained from developing, transferring, leasing, charging, letting, assigning or dealing with the land adversely pending determination of the dispute. The application was allowed in part: the injunction was varied to permit continued possession, but the Respondents' request to replace it entirely with a status quo order was declined, and no construction or permanent development was permitted. Costs were awarded against the 1st Respondent for failing to disclose her possession in an earlier affidavit, and the appeal was set down for mention on February 27, 2023 to confirm filing of the record of appeal.

Key legal issues

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Whether the interim injunction of October 13, 2022 should be reviewed, varied or set aside

Holding

The injunction was varied: the restraint on entry, use or occupation was removed so as to permit the 1st Respondent's continued possession, while restraints on development, transfer and adverse dealings were retained pending the appeal.

Reasoning

The court found on the material that the 1st Respondent was in possession of the suit property, cultivating wheat, both when the interim order was made and currently. Since an injunction cannot restrain someone already in possession from occupying the land, the appropriate remedy was variation rather than setting aside. However, the Respondents' proposal to replace the injunction wholly with a status quo order was declined, as the land required preservation against permanent developments.

p. 2

Legal principles established

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  • A party already in possession of disputed property cannot be restrained from entering, using or occupying it, but may be restrained from developing, transferring, leasing, charging, letting, assigning or otherwise dealing with the land adversely pending determination of the ownership dispute.

Court orders

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  1. 1.The interim injunction made on October 13, 2022 is varied by removing reference to the part of the order restraining the Respondents from entering, using or occupying the suit property
  2. 2.The interim injunction granted on October 13, 2022 shall restrain the Respondents either by themselves, their servants, or agents from developing, transferring, leasing, charging, letting, assigning and dealing in any adverse manner whatsoever with Title No Laikipia/Uaso Narok B/1378 pending the hearing and determination of the appeal
  3. 3.The costs of the application shall be borne by the 1st Respondent in any event for failing to file an affidavit earlier to disclose that she was in possession of the suit property
  4. 4.The appeal shall be mentioned on February 27, 2023 to confirm filing of the record of appeal
Jurisdiction invoked
Article 159(1)(d) of the Constitution of Kenya 2010, Sections 1A and 3A of the Civil Procedure Act (Cap 21), and Orders 12 rule 7 and 51 rule 1 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, "Lekuam v Gichohi & another (Environment & Land Case E020 of 2021) [2023] KEELC 302 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/302/eng@2023-01-19

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