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ELCDismissedEnvironment & Land Case E036 of 2022· [2023] KEELC 17795 (KLR)

Onyango v Aloo & 3 others

Environment and Land Court
31 May 2023
EAE. Asati
1,566 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Kisumu Environment and Land Court dismissed a landowner's injunction bid because the parcel he sought to protect had already been subdivided and registered in his own name.

What this practically means

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Executive summary

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The plaintiff, Silas Amolo Onyango, moved the Environment and Land Court at Kisumu by notice of motion dated December 21, 2022, seeking urgent temporary injunction and restricting orders restraining the defendants from trespassing on, sub-dividing, alienating or interfering with land parcels Kisumu/Konya/2567 and Kisumu/Konya/8007, together with declarations that the sub-division was illegal and orders for re-survey. The application, brought under Order 40 and Order 50 of the Civil Procedure Rules and sections 1A, 1B, 2, 3A and 63(e) of the Civil Procedure Act, was opposed only by the 1st Defendant, John Aloo, who denied interference, asserted ownership of parcels 9212 and 9213, and contended that the plaintiff himself subdivided Kisumu/Konya/2567 into parcels 8005, 8006 and 8007, all registered in the plaintiff's name. He also questioned the legality of the plaintiff's title and raised a boundary-dispute jurisdictional objection under sections 18 and 19 of the Land Registration Act. The 2nd to 4th Defendants did not respond. Applying the Giella v Cassman Brown principles, E. Asati, J found no evidence annexed by the applicant of any subdivision, sharing or unlawful activities by the Respondents. The green cards showed parcel 2567 was closed on June 18, 2018 upon subdivision into parcels 8005, 8006 and 8007, all registered in the plaintiff's name, meaning parcel 2567 no longer exists and cannot be the subject of injunction. No irreparable injury was demonstrated. The court dismissed the application with costs to the 1st Defendant/Respondent, noting that prayers for permanent orders could only be granted after full hearing.

Key legal issues

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01

Whether the applicant established a prima facie case for temporary injunction

Holding

No prima facie case established; no evidence of the alleged subdivision, sharing or interference by the Respondents was exhibited

Reasoning

The court applied the Giella test. Under Order 40 Rule 1 the applicant had to show the suit land was likely to be wasted, damaged or alienated by the Respondents' unlawful acts. The application had no annextures; the applicant's documents only showed ownership of Kisumu/Konya/2567. The 1st Respondent's green cards showed the parcel was closed on subdivision in 2018 with resultant parcels registered to the plaintiff himself.

p. 3
02

Whether the applicant would suffer irreparable injury

Holding

No irreparable injury demonstrated; the new parcels remain registered in the plaintiff's name

Reasoning

The green cards showed the resultant parcels Kisumu/Konya/8005, 8006 and 8007 were registered in the plaintiff's name on June 18, 2018 and remain so. No evidence controverted this, so no irreparable injury was shown.

p. 3

Legal principles established

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  • A parcel of land whose title has been closed upon subdivision no longer exists and cannot be the subject of orders of injunction

Court orders

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  1. 1.The application dated December 21, 2022 is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 4
  • Civil Procedure RulesOrder 50 Rule 1
  • Civil Procedure Actsections 1A, 1B, 2, 3A and 63(e)
  • Land Registration Actsections 18 and 19

Cases cited (1)

  • Giella –vs- Cassman Brown & Co Ltd
    [1973] EA 358

    Principles for grant of temporary injunction: prima facie case, irreparable injury, balance of convenience

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application brought under Order 40 Rules 1, 2, 3 and 4 and Order 50 Rule 1 Civil Procedure Rules and sections 1A, 1B, 2, 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, "Onyango v Aloo & 3 others", Case Analysis (2023). Environment & Land Case E036 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17795/eng@2023-05-31

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