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ELCDismissedEnvironment & Land Case E005 of 2023· [2023] KEELC 18272 (KLR)

Owidi (Suing as the legal representative of the Estate of Thadayo Mumbo Owidi -Deceased) v Ondenge

Environment and Land Court
14 June 2023
1,165 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 court refused an injunction because the applicant waited too long, but froze the land's status quo until the case is decided.

What this practically means

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Executive summary

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This ruling by GMA Ongondo, J of the Environment and Land Court at Homa Bay determined a notice of motion dated March 29, 2023 filed by Daniel Odhiambo Ondenge (the respondent in the main suit) under Order 40 rules 1 and 2 of the Civil Procedure Rules, 2010. He sought an interlocutory injunction restraining Pilista Mumbo Owidi, the plaintiff in the main suit, from trespassing, tilling or grazing on parcel Kabondo/Kodhoch West/351 pending the hearing of the suit, with compliance orders directed at the area chief and OCS. He claimed to be the bona fide owner, alleging that on March 20, 2023 the respondent trespassed, cut indigenous trees and tilled the land. In her replying affidavit, Owidi averred she had occupied the land since 1994, that her late husband and son were buried there, and that the application was frivolous and brought in bad faith. The court framed two issues: whether the injunction threshold was met and costs. Applying Giella v Cassman Brown as reiterated in Nguruman Limited, the court found no real danger demonstrated, observed the application was an afterthought filed only after the respondent filed the main suit, and held that interlocutory injunctions preserve the substratum of the suit without occasioning prejudice. The application was dismissed. However, to preserve the suit land, the court granted an order of status quo in lieu of an interim injunction under section 13(7)(a) of the Environment and Land Court Act pending determination, with costs of the application in the cause.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The applicant failed to demonstrate a prima facie case with a likelihood of success or a real danger of prejudice; the application was an afterthought filed only after the respondent filed the main suit.

Reasoning

The court applied the Giella triple test as reiterated in Nguruman Limited. It found no real danger demonstrated to warrant the orders sought, noted the application was filed only after the respondent instituted the suit, and held that interlocutory injunctions preserve the substratum of the suit rather than occasion prejudice. The applicant advanced no satisfactory argument for the orders.

p. 3
02

Whether an alternative preservation order was warranted

Holding

The court granted an order of status quo in lieu of an interim injunction under section 13(7)(a) of the Environment and Land Court Act to preserve the suit land pending determination.

Reasoning

Although the injunction failed, the court invoked its statutory power under section 13(7)(a) of the Environment and Land Court Act, 2015 to preserve the suit land by maintaining the status quo pending the hearing and determination of the suit.

p. 3

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
  • Interlocutory injunctions are meant to preserve the substratum of the suit and not to occasion prejudice to any party

Court orders

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  1. 1.The notice of motion dated March 29, 2023 is disallowed as unmerited
  2. 2.An order of status quo in lieu of interim injunction is granted in line with section 13(7)(a) of the Environment and Land Court Act, 2015, pending the hearing and determination of the suit
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules, 2010; section 13(7)(a) of the 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, "Owidi (Suing as the legal representative of the Estate of Thadayo Mumbo Owidi -Deceased) v Ondenge", Case Analysis (2023). Environment & Land Case E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18272/eng@2023-06-14

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