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ELCOtherEnvironment & Land Case 4 of 2022· [2023] KEELC 18193 (KLR)

Marino & another v Oduor & another

Environment and Land Court
20 June 2023
MOM.A. Odeny
1,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost an injunction bid because the court couldn't tell which parcel was actually being disputed, so only a status quo order was granted.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated January 26, 2022 by the Plaintiffs, Santin Marino and Sandra Dickson, seeking an interlocutory injunction restraining Jabess Mdhai Oduor and Rebecca Mutola from entering, constructing on, selling, leasing or dealing with land known as number 5519 (Original Number 1738/21) Malindi LT 38 Folio 270A/1 File Number 6724, measuring 112.82 acres, pending hearing of the suit. The Plaintiffs asserted registered ownership and alleged that the 1st Defendant trespassed in 2018 and illegally sold a portion to the 2nd Defendant, evicting their caretaker. The Defendants denied the claim: the 1st Defendant said he purchased the land from Moses Ojala Sikuku in February 2018 and transferred it to the 2nd Defendant for Kshs 1,000,000/-, and that the Plaintiffs' indenture referred to a different parcel; the 2nd Defendant said she bought only 1.029Ha. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, the court found the Plaintiffs failed to establish a prima facie case: their pleadings did not address the discrepancy between 112.82 acres and 1.029Ha, leaving doubt whether the parties claim the same land, and the Plaintiffs filed no submissions. The photographs of a half-done perimeter wall did not prove the alleged destruction occurred on the suit land. The injunction was refused, but the court granted an order of status quo to be maintained pending determination of the suit, with each party bearing their own costs.

Key legal issues

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01

Prima facie case

Holding

Plaintiffs failed to establish a prima facie case because they did not prove their interest in the suit land; the indenture and pleadings left doubt as to whether the parcel they claim is the same one the Defendants claim

Reasoning

The Plaintiffs claimed ownership of 112.82 acres while the Defendants asserted the 2nd Defendant purchased only 1.029Ha. The pleadings nowhere mentioned 1.029Ha, and the Plaintiffs did not distinguish the measurements or file submissions to rebut the Defendants' assertion, leaving doubt as to the identity of the land claimed.

p. 3
02

Irreparable injury

Holding

Photographs of a half-done perimeter wall did not prove the alleged clearing of indigenous trees occurred on the suit land, so irreparable injury was not demonstrated

Reasoning

The Plaintiffs alleged the Defendants cleared indigenous trees and began constructing a perimeter wall, attaching photographs. The court found the photographs showed only a half-done wall, did not show where trees were cut, and there was no evidence they were taken on the suit land.

p. 4
03

Status quo as preservation measure

Holding

In the interest of justice, an order of status quo was granted to preserve the substratum of the case pending hearing and determination

Reasoning

Relying on Joel Mugambi Mukira v County Government of Nyeri and Mugah v Kunga, the court held that in land matters status quo orders preserve the subject matter, and exercised its discretion under Practice Direction No 28(k) to maintain the status quo instead of granting the injunction.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience lies in his favour
  • In land matters, status quo orders should be issued to preserve the subject matter pending determination of the case

Court orders

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  1. 1.An order of status quo to be maintained pending the hearing and determination of the case
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 [1]
  • Practice Direction No 28(k)Gazette Notice No 5178/2014

Cases cited (7)

  • Giella v Cassman Brown and Bros Ltd
    [1973] EA 358

    Principles for grant of temporary injunctions

  • Mrao Limited v First American Bank of Kenya
    [2003] KLR 125

    Definition of a prima facie case

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR

    Irreparable injury not adequately compensable by damages

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No 77 of 2012 [2014] eKLR

    Sequential triple requirements for interlocutory injunctions

  • Kenya Commercial Finance Co Ltd v Afraha Education Society
    [2001] Vol 1 EA 86

    Conditions applied as separate, distinct and logical hurdles

  • Joel Mugambi Mukira & 2 others v County Government of Nyeri
    [2019] eKLR

    Status quo orders in land matters preserve the subject matter

  • Mugah v Kunga
    [1988] KLR 748

    Status quo orders should always be issued in land matters

Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court 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, "Marino & another v Oduor & another", Case Analysis (2023). Environment & Land Case 4 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18193/eng@2023-06-20

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