Lemasei (Suing as the Representative of the Estate of Benjamin Lemasei Tumpes) v Kenya Commercial Bank Limited & another; Mwangi & 11 others (Interested Parties) (Environment & Land Case 43 of 2017) [2024] KEELC 1175 (KLR)
The bottom line
#A Kajiado court refused to protect a family's claim to disputed land, largely because she waited over four years to act after learning of the subdivision.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with a probability of success
Not established - the plaintiff's possession was contested, the interested parties' position unaddressed, and there was inordinate delay after learning of the subdivision in 2017
The court found the plaintiff's account did not establish a prima facie case. She learned of the subdivision through a 2017 affidavit yet waited until May 2022 to file. Both parties claimed possession, making it impossible at that stage to determine who was in possession. Nothing was said about occupation by the interested parties who had owned their parcels since at least 2017.
Irreparable loss
Not proved - no threat to the land or particulars of what the plaintiff had put up on it were shown; delay rendered an injunction mere delay in a very old dispute
The court held it incumbent on the plaintiff to prove she would suffer irreparable loss if the injunction were refused. She failed to prove any threat to the land or what she had put up on it. Given the lapse of time since the 1992 sale and the filing of the suit, an injunction would only prolong a fourteen-year-old dispute.
Balance of convenience
Could not be determined - the status quo was uncertain because both parties claimed possession
On the final issue the court found that, owing to lack of certainty as to what the status quo really was, it was difficult to say in whose favour the balance of convenience tilted. Since neither the plaintiff nor the second defendant had addressed the occupation of the interested parties, the court could not resolve where the balance lay and declined to grant relief on this limb.
Legal principles established
#- Issues such as competence of the suit and res judicata, if raised at an interlocutory stage late in a partly-heard suit, may be left to be determined at the hearing rather than in an injunction application
- Delay of over four years in bringing an injunction application after acquiring knowledge of the alleged interference undermines a claim of prima facie case and irreparable loss
Court orders
#- 1.The notice of motion dated 4/5/2022 is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Sections 3A and 63(c) of the Civil Procedure Act and Orders 40 Rule 1 and 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lemasei (Suing as the Representative of the Estate of Benjamin Lemasei Tumpes) v Kenya Commercial Bank Limited & another; Mwangi & 11 others (Interested Parties) (Environment & Land Case 43 of 2017) [2024] KEELC 1175 (KLR)", Case Analysis (2024). Notice of motion dated 4/5/2022 (suit partly heard, in its fourteenth year). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1175/eng@2024-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.