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ELCPartially Allowed· [2023] KEELC 441 (KLR)

Chemutai (Suing as the legal representative of the Estate of William Kipsongok Lagat) v Choi & 5 others (Environment & Land Case E002 of 2022) [2023] KEELC 441 (KLR)

Environment and Land Court
6 February 2023
1,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court froze the position on disputed land: the occupier keeps her 7 acres, and the registered owners cannot sell or lease it until the case ends.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kapsabet delivered by M. N. Mwanyale, J, on February 6, 2023. The applicant, Francisca Chemutai Lagat, moved by Notice of Motion dated July 15, 2022 under Order 40 Rules 1, 2 and 2A of the Civil Procedure Rules 2010 and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, seeking an interim injunction restraining the respondents from entering, sub-dividing, alienating, charging, selling or interfering with 7.0 acres of land parcel L.R. No. Nandi/Ollessos/80, and from evicting her, pending the hearing of the suit. She claimed to have been in actual, peaceful and uninterrupted occupation for over 49 years and to have acquired rights by adverse possession, suing as legal representative of the estate of William Kipsongok Lagat (deceased) under a limited grant ad litem. The respondents, the registered proprietors, relied on Article 40 of the Constitution and contended that the applicant had not met the Giella v Cassman Brown threshold. Applying the Giella principles and the Mrao definition of a prima facie case, the court found the respondents had not disputed the applicant's occupation of the suit portion, establishing a prima facie case; that a premature eviction would cause irreparable loss; and that the balance of convenience favoured the applicant. Citing Mugah v Kunga and Texaco Limited v Mulberry Limited, the court granted orders of status quo in the register and on the ground in lieu of a temporary injunction, preserving the applicant's possession of the 7 acres while barring fresh structures and any dealings by the respondents. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Yes - the respondents did not dispute the applicant's occupation of the suit portion or their own proprietorship, so there is no guarantee the status quo at trial will match the register or the ground

Reasoning

The applicant claimed to have occupied and utilized 7.0 acres of the suit property for over 49 years and sought a declaration of ownership by adverse possession. The respondents neither disputed her occupation nor their proprietorship. Applying the Mrao definition, the court found the applicant established a prima facie case at this interlocutory stage, without delving into the intricacies of the case.

p. 3
02

Whether irreparable loss and balance of convenience favour the applicant

Holding

Yes - the unchallenged photographs of developments and the possibility of premature eviction pointed to irreparable loss, and the balance of convenience tilts in the applicant's favour

Reasoning

The applicant exhibited photographs of developments on the suit portion which the respondents did not deny. Refusing an injunction while the applicant is in occupation could result in a premature eviction causing irreparable loss and damage. The court also found the balance of convenience tilted in the applicant's favour and that status quo orders would preserve the substratum of the suit.

p. 3
03

The appropriate interlocutory preservation order

Holding

An order of status quo in the register and on the ground, rather than a temporary injunction, suffices to preserve the suit property

Reasoning

Relying on Mugah v Kunga and Texaco Limited v Mulberry Limited, the court held that status quo orders may issue as a case management strategy. It defined status quo on the ground (applicant retains possession of the 7 acres but erects no new structures) and in the register (respondents remain registered but cannot deal with the property).

p. 4

Legal principles established

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  • A prima facie case in a civil application is a case which, on the material presented, shows a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • Courts may issue status quo orders as a case management strategy, not only on formal applications for injunction, conservatory or stay orders

Court orders

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  1. 1.Orders of status quo both in the register and on the ground in lieu of the temporary injunction as prayed, pending hearing and determination of the suit
  2. 2.Status quo on the ground: the applicant to retain possession of the disputed 7.0 acres but not erect any additional structures until final determination of the suit
  3. 3.Status quo in the register: the respondents remain registered proprietors and shall not sell, charge, lease or enter into dealings over the disputed property until finalization of the suit
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1, 2 and 2A
  • Civil Procedure Actsections 1A, 1B, 3A and 63(e)
  • Constitution of KenyaArticle 40

Cases cited (5)

  • Giella v Cassman Brown
    [1973] EA 358
  • American Cyanamid Company v Ethicom Limited
    [1975] A AER 504
  • Mrao Limited v First American Bank of Kenya Limited and 2 others
    [2003] eKLR
  • Mugah v Kunga
    [1988] KLR 748
  • Texaco Limited v Mulberry Limited
    [1972] I WLR 814
Jurisdiction invoked
Order 40 Rules 1, 2 and 2A of the Civil Procedure Rules 2010; sections 1A, 1B, 3A and 63(e) of the Civil Procedure 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, "Chemutai (Suing as the legal representative of the Estate of William Kipsongok Lagat) v Choi & 5 others (Environment & Land Case E002 of 2022) [2023] KEELC 441 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/441/eng@2023-02-06

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