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ELCDismissedNot stated in the judgment· [2023] KEELC 533 (KLR)

Shurake & another v Ndilai (Environment & Land Case E009 of 2022) [2023] KEELC 533 (KLR)

Environment and Land Court (inferred from subject matter and station; not expressly printed in the extract)
31 January 2023
MGM.N. Gicheru
554 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to evict or restrain a brother occupying family land, ruling you cannot get an injunction against someone already living on the property.

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 Kajiado (M.N. Gicheru, Judge) delivered virtually on 31 January 2023 on the plaintiffs' notice of motion dated 2/2/2022. The plaintiffs, registered owners of L.R. Kjd/ewuaso-kedong/6964, sought orders restraining their brother, the defendant, from trespassing on, wasting, constructing on or interfering with the suit land, restraining any interference with the land register, and evicting him from the land pending the hearing and determination of the suit. The defendant opposed the motion through a replying affidavit sworn on 10/5/2022, contending that the plaintiffs obtained registration fraudulently and that he had lodged an objection dated 3/5/2021 in High Court (Nairobi) Succession Cause No. 640 of 1988, which was active and in which the order conferring the plaintiffs' title could be revoked. The court noted that counsel's written submissions, due by 10 October 2022, had not been filed. Dismissing the motion, the court held that the plaint itself admitted the defendant was already in occupation and had erected structures, so he could not be restrained from trespassing; that it is unfair to evict a party in possession at the interlocutory stage before hearing him; that the plaintiffs' averment that no other suit was pending was disputed by the active succession cause; and that the applicants established neither a prima facie case with probability of success, nor damages not adequately compensable, nor that the balance of convenience favoured them. The Notice of Motion was dismissed for lack of merit.

Key legal issues

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01

Prima facie case with probability of success

Holding

The plaintiffs failed to establish a prima facie case because their own plaint admitted the defendant's occupation and construction on the land, and the respondent had challenged the title in an active succession cause.

Reasoning

The court reasoned that a restraining order for trespass cannot issue against a person the plaint admits is in occupation. Further, the plaintiffs averred no other suit was pending between the parties, but the defendant deposed that Succession Cause No. 640 of 1988 was active and the order conferring title might be revoked, undermining the certainty of their registered title.

p. 2
02

Irreparable harm and balance of convenience

Holding

The applicants did not show damages would be inadequate and did not prove the balance of convenience tilted in their favour; the motion was accordingly dismissed.

Reasoning

Applying the conventional interlocutory injunction test, the court found the second and third limbs unsatisfied. The applicants had not demonstrated that they stood to suffer damages incapable of adequate compensation, nor did they prove the balance of convenience favoured them, warranting dismissal of the whole motion.

p. 2

Legal principles established

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  • A party already in occupation of suit land cannot be restrained from trespassing thereon.
  • A party in possession cannot be evicted at the interlocutory stage before being heard.
  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, irreparable damage not compensable by damages, and that the balance of convenience favours the grant.

Court orders

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  1. 1.The Notice of Motion dated 2/2/2022 is dismissed for lack of merit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (no specific constitutional/statutory provision quoted in the judgment)

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, "Shurake & another v Ndilai (Environment & Land Case E009 of 2022) [2023] KEELC 533 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/533/eng@2023-01-31

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