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ELCAllowedEnvironment & Land Case E003 of 2023· [2023] KEELC 19848 (KLR)

Silas Kipchilat v Sarah Chelel Boit

Environment and Land Court
21 September 2023
JOJ.M Onyango
1,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court blocked a landowner from evicting or selling disputed land until the ownership case is fully heard.

What this practically means

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Executive summary

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By Notice of Motion dated March 2, 2023, the plaintiff sought a temporary injunction restraining the defendant from evicting him or his tenants, encroaching on, leasing, selling or dealing with Eldoret Municipality Block 12/773 pending determination of his suit, which is founded on adverse possession arising from occupation since January 1, 1998. The defendant, administrator of the estate of Samuel Kiplel Boit, opposed the application, deposing that the deceased received a letter of allotment in June 1998, complied with its conditions, and that a lease and Certificate of Lease over the parcel were issued in the deceased's name on September 9, 2022 and November 2, 2022 respectively. She argued that the plaintiff's adverse possession claim is misconceived because the land belonged to the Government of Kenya before the lease crystallized, and adverse possession cannot be claimed against the Government. The application was canvassed by written submissions. Framing the sole issue as entitlement to a temporary injunction, the court applied the Giella v Cassman Brown and Nguruman principles. It found a prima facie case since the plaintiff's occupation and the eviction notice were undisputed, holding that the merits of the adverse possession claim fall for the main suit and that the interlocutory court's concern is preserving the subject matter. On irreparable loss, it adopted Panari Enterprises that land is unique and damages are not always a suitable remedy. The balance of convenience favoured the plaintiff, who had been in possession. The court granted the temporary injunction as sought, with costs of the application in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case for temporary injunction

Holding

Yes - occupation and the eviction notice were undisputed; the merits of the adverse possession claim are for the main suit.

Reasoning

The court applied Nguruman: at the interlocutory stage the applicant need only show a right threatened with violation, without a mini-trial. The plaintiff's occupation and the eviction notice were not disputed, so a right capable of protection was shown.

p. 3
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

Yes - the suit concerns land, which is unique, and damages are not always a suitable remedy.

Reasoning

Relying on Panari Enterprises v Lijoodi, the court held that although rental income could be ascertained, the case is ultimately about land, which is unique, and it would hesitate to hold that loss of it can easily be compensated in damages.

p. 3
03

Whether the balance of convenience favours the plaintiff

Holding

Yes - the plaintiff has been in possession and would be prejudiced by eviction before the case is heard.

Reasoning

The court found the plaintiff's continued possession undisputed and held that eviction before hearing and determination of the suit would prejudice him, tilting the balance of convenience in his favour.

p. 3

Legal principles established

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  • At the interlocutory stage the court is concerned with preserving the subject matter of the suit, not determining the merits of the adverse possession claim.
  • Land is unique and damages are not always a suitable remedy where a clear legal right or breach is established.

Court orders

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  1. 1.A temporary injunction restraining the Defendant/Respondent, her employees or agents from evicting the plaintiff, his agents, tenants or servants, encroaching, leasing, selling or dealing in any way with Eldoret Municipality Block 12/773 pending hearing and determination of the main suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40

Cases cited (5)

  • East African Industries vs. Trufoods
    [1972] EA 420

    Principles governing grant of interlocutory injunctions

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

    Principles governing grant of interlocutory injunctions

  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR

    Triple requirements for interlocutory injunction and meaning of prima facie case

  • Joseph Siro Mosiomo v Housing Finance Company of Kenya
    (2008) eKLR

    Relied on by plaintiff on irreparable loss

  • Panari Enterprises Ltd -vs- Lijoodi & 2 Others
    (2014) eKLR

    Land is unique; damages not always a suitable remedy

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (implied; not expressly cited in the ruling)

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, "Silas Kipchilat v Sarah Chelel Boit", Case Analysis (2023). Environment & Land Case E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19848/eng@2023-09-21

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