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ELCDismissedEnvironment & Land Case E011 of 2022· [2023] KEELC 15954 (KLR)

Julius & another v Marete & another

Environment and Land Court
8 March 2023
CYC K Yano
1,029 words in judgment
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The bottom line

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The court refused to block land dealings because the applicants failed to prove a strong case, real irreparable harm, or why convenience favoured them.

What this practically means

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Executive summary

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The applicants, plaintiffs claiming adverse possession of LR Abothuguchi/Kitheri/177 registered in the names of the defendants as administrators of the estate of Marete Kiunga (deceased 1961), moved the court by notice of motion dated September 16, 2022 under Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, section 68 of the Land Registration Act and other provisions, seeking temporary injunction and inhibition pending hearing of the suit. They alleged lifelong occupation, farming and development on the land, and threatened eviction and illegal sub-division or disposal. The respondents opposed via a replying affidavit of the 1st defendant, showing the applicants are her nephews residing on the land with their father's consent; the land was the subject of Meru High Court Succession Cause No 3 of 1978, in which judgment ordered equal distribution among beneficiaries including the applicants; the grant was confirmed and implemented; and the applicants' attempted appeal (Nyeri Civil Application No E025 of 2021) was dismissed on August 26, 2022. Applying the Giella v Cassman Brown principles, the court found no prima facie case with probability of success, no irreparable harm not compensable in damages, and that the balance of convenience lay with the respondents, who hold an implemented judgment. The applicants filed no affidavit in reply. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether to grant temporary injunction and inhibition over land subject of a implemented succession judgment

Holding

Application dismissed; applicants failed all three Giella conditions

Reasoning

The suit land had already been the subject of Meru High Court Succession Cause No 3 of 1978, where judgment ordered equal sharing among beneficiaries including the applicants, confirmed by a certificate of confirmation of grant and an adverse Court of Appeal ruling. The applicants filed no affidavit to contradict the 1st respondent's averments. They therefore showed no prima facie case, no irreparable harm compensable only by injunction, and the balance of convenience favoured the respondents holding a judgment.

p. 2

Legal principles established

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  • The Giella v Cassman Brown conditions govern applications for temporary injunction: prima facie case, irreparable harm not compensable by damages, and balance of convenience

Court orders

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  1. 1.The notice of motion dated September 16, 2022 is dismissed with costs to the respondents
Jurisdiction invoked
Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, sections 1A, 1B of the Civil Procedure Act 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, "Julius & another v Marete & another", Case Analysis (2023). Environment & Land Case E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15954/eng@2023-03-08

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