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ELCOtherEnvironment and Land Appeal E014 of 2022· [2023] KEELC 15725 (KLR)

Orina v Jairo & 3 others

Environment and Land Court
23 February 2023
JKJM Kamau
811 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 appeal court refused an injunction but protected the disputed property by ordering both title deeds locked in the lower court until the appeal is decided.

What this practically means

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Executive summary

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The appellant, Justus Ongera Orina, appealed against a ruling of Hon. M.C. Nyigei (SPM) in Nyamira CMC ELC Case No. E43 of 2021 dismissing his application dated December 15, 2021 seeking temporary injunction restraining the respondents from interfering with land parcel Mwongori Settlement Scheme/50 pending the hearing of the suit. The trial court found no prima facie case because the appellant did not prove he was the registered owner, no irreparable injury not compensable in damages, and that parcel Mwongori Settlement Scheme/1206 had already been carved out of the suit land, meaning the injury had already occurred. Before the Environment and Land Court at Nyamira, the appellant sought interim/temporary injunction pending the appeal, arguing the appeal would be rendered nugatory, was arguable with overwhelming chances of success, and that the respondents' acts were calculated to superimpose Title Mwongori Settlement Scheme/1206 on parcel 50. Kamau J observed that the orders sought were both the subject of the appeal and the substratum of the underlying suit, and that giving reasons would prejudge both proceedings. Declining to grant the injunction, the court instead ordered that both title deeds be deposited in the lower court within 48 hours and that the order be registered with the Land Registrar, Nyamira, to prevent any change of title pending the appeal. No costs order was made.

Key legal issues

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01

Whether the court on an interlocutory application pending appeal should grant injunction orders that are both the subject matter of the appeal and the substratum of the underlying suit

Holding

The court declined to grant the injunction, choosing instead a preservation order depositing the titles in the lower court to protect the subject matter

Reasoning

The judge noted that any reasons given on the injunction would prejudge both the appeal and the trial court's final decision, an undesirable result. To balance the opposing interests without prejudging the merits, the court ordered that both title deeds be deposited in the lower court and the order registered to prevent any transfer pending the appeal.

p. 2

Legal principles established

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    Court orders

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    1. 1.Pending the hearing of the Appeal, Title Number Mwongori Settlement/50 and Mwongori Settlement Scheme/1206 be deposited in the lower court forthwith and in any case within the next 48 hours
    2. 2.This order should be registered with the Land Registrar, Nyamira
    On appeal from
    Magistrate's Court at Nyamira
    Nyamira CMC ELC Case No. E43 of 2021
    Jurisdiction invoked
    First appellate/interlocutory jurisdiction of the Environment and Land Court over appeals from the Magistrate's Court in environment and land matters

    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, "Orina v Jairo & 3 others", Case Analysis (2023). Environment and Land Appeal E014 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15725/eng@2023-02-23

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