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ELCOtherOriginating Summons (Naivasha ELC) with Notice of Motion dated 28th July 2023· [2024] KEELC 1526 (KLR)

Koech & another v Chepkwony & another (Enviromental and Land Originating Summons E005 of 2023) [2024] KEELC 1526 (KLR)

Environment and Land Court
21 March 2024
MOM.C. Oundo
2,548 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Naivasha court preserved an occupied family farm by freezing everything as it was, rather than deciding who truly owns the land.

What this practically means

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Executive summary

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By a Notice of Motion dated 28th July 2023 under Order 40 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the Plaintiffs sought interim injunctive orders restraining the Defendants from evicting them, demolishing structures, selling, alienating, transferring or otherwise interfering with land parcel Kericho/Kiptere/467, and a direction to the Land Registrar to restrict dealings, pending hearing of the Originating Summons. The 1st Plaintiff deponed that she and her late husband purchased the land in 1975 from the then registered owner, Kipkosgei Arap Mitei, though it was never registered in their names, and that they built a matrimonial home, farmed and lived there continuously for over 47 years. The Defendants, registered as proprietors on 12th September 2019 following a succession cause, denied the sale and the Applicants' occupation, asserting the Applicants were not beneficiaries of the estate. Both sides filed written submissions invoking Giella v Cassman Brown and Mrao v First American Bank. The court held that occupation of the suit land was not disputed, since the Respondents admitted making attempts to evict the Applicants and served an eviction notice. Rather than granting the injunction in the terms sought, the court invoked Mugah v Kunga and Practice Direction No. 28(k) and ordered maintenance of a clearly defined status quo: the Applicants remain in occupation as at filing of the Originating Summons, no registration dealings or interference with the parcel, until final determination. Costs of the application were reserved to the cause. The adverse possession claim awaits the full hearing.

Key legal issues

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01

Whether the Applicants established a prima facie case for an interlocutory injunction

Holding

The court found it unnecessary to fully determine the merits; occupation was undisputed, which anchored a preservation order

Reasoning

The court applied the Mrao definition of a prima facie case and held that at the interlocutory stage it need not determine whether the Applicants had a genuine and arguable case. It noted the Respondents themselves acknowledged the Applicants' presence on the land by admitting attempts to evict them and by serving an eviction notice, so occupation was not in dispute. The adverse possession claim was left for the full hearing.

p. 5
02

Whether interim preservation orders should issue pending determination of the Originating Summons

Holding

Status quo order issued, preserving the Applicants' occupation and restraining registration dealings until final determination

Reasoning

Relying on Mugah v Kunga and Practice Direction No. 28(k) in Gazette Notice No. 5178/2014, the court held that status quo orders in land matters preserve the subject matter and assist case management. It defined the status quo: the Applicants remain in occupation as at filing, and no registration dealings or interference with the parcel shall occur until the suit is heard and determined.

p. 5

Legal principles established

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  • A prima facie case is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • In land matters, status quo orders should always be issued for purposes of preserving the subject matter pending determination

Court orders

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  1. 1.An order of status quo issued to be maintained by all parties, the Plaintiffs/Applicants remaining in occupation of land parcel LR No. Kericho/Kiptere/467 as at the time of filing the Originating Summons
  2. 2.No registration dealings with or interference with parcel LR No. Kericho/Kiptere/467 pending final determination
  3. 3.Status quo to be maintained by all parties until the matter is finally heard and determined
  4. 4.Costs of the application dated 28th July 2023 to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1 (also referred to as Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2020)
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A
  • Gazette Notice No. 5178/2014Practice Direction No. 28(k)

Cases cited (6)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Joseph Siro Masioma v Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR
  • Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another
    [2019] eKLR
  • Mugah –v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap 21 (inherent jurisdiction)

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, "Koech & another v Chepkwony & another (Enviromental and Land Originating Summons E005 of 2023) [2024] KEELC 1526 (KLR)", Case Analysis (2024). Originating Summons (Naivasha ELC) with Notice of Motion dated 28th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1526/eng@2024-03-21

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