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ELCPartially AllowedBungoma ELC Appeal (memorandum of appeal dated 30th March, 2023) - appeal from Kimilili MC ELC Case No. 13 of 2023· [2024] KEELC 3930 (KLR)

Ndiema & 2 others v Matayo & 2 others (Suing as Legal Representative of Matayo Otola Munyani) (Environment and Land Appeal 21 of 2023) [2024] KEELC 3930 (KLR)

Environment and Land Court
16 May 2024
4,175 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Bungoma set aside an injunction against sugarcane farmers, ruling that whoever is actually living on disputed land should stay put until trial.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Bungoma against the ruling of the Principal Magistrate, Kimilili (Hon. G. Adhiambo) in Kimilili MC ELC Case No. 13 of 2023, by which temporary injunctions were granted restraining the appellants from entering, utilising, taking possession of or dealing with land parcel Elgon/Kapsokwony/3xx pending hearing of the respondents' suit. The respondents, administrators of the estate of Matayo Otula Munyani (registered proprietor who died in 1986), alleged trespass from January 2023. The appellants countered that the deceased's family shared out the land in 1987 and that they purchased 3 acres under an agreement dated 4th April, 1989, since when they have cultivated sugarcane. E.C. Cherono J identified the sole substantive issue as whether the appellants were entitled to the orders sought. Applying the Giella v Cassman Brown principles as restated in Nguruman, the court found that conflicting claims of purchase and denial, and the question whether land of a deceased person could lawfully be sold before letters of administration were taken out, were triable issues on which no definitive findings could be made at the interlocutory stage; hence no prima facie case was established. The respondents, not being in possession, also failed to demonstrate irreparable injury; granting the injunction in effect evicted the party in occupation and operated as a mandatory injunction. Allowing the appeal, the court set aside the trial court's orders, directed maintenance of the status quo pending the hearing of the main suit, remitted the matter to Kimilili for directions and a hearing date, and awarded the costs of the appeal to the appellants against the respondents.

Key legal issues

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01

Whether the respondents established a prima facie case with a probability of success

Holding

The respondents did not establish a prima facie case because the appellants' competing claim of possession since 1989 raised triable issues that could not be resolved at the interlocutory stage.

Reasoning

The respondents showed registration of the suit land in their deceased father's name, but the appellants produced sale agreements dated 1987 and 1989 and claimed possession and cultivation since 1989. The court held that whether the respondents had capacity to sell the deceased's land before taking out letters of administration was a triable issue requiring a full trial with cross-examination, so the injunction could not stand.

p. 7
02

Whether the respondents demonstrated irreparable injury

Holding

The respondents failed to demonstrate irreparable injury since they were not in possession or occupation of the suit property; the appellants were in occupation and had planted sugarcane.

Reasoning

Applying the Kogo v Tenai standard, injury must be one that damages cannot adequately compensate. The court found the respondents were not in possession, whereas the appellants were in occupation with growing sugarcane due for ploughing/weeding. Therefore the trial court erred in finding irreparable injury.

p. 7
03

Whether the balance of convenience favoured the respondents

Holding

Having failed on the first two conditions, the respondents could not succeed, and the appellants' occupation and cultivation gave them an arguable ground requiring escalation to full hearing.

Reasoning

The court held that the appellants' claimed occupation and planting of sugarcane ready for ploughing/weeding was sufficient reason that there was an arguable ground to escalate the matter to full hearing rather than grant an injunction that would effectively evict the party in occupation.

p. 8

Legal principles established

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  • The three Giella v Cassman Brown conditions for interlocutory injunctions are separate, distinct and logical hurdles to be surmounted sequentially.
  • Where there are serious conflicts of facts at the interlocutory stage, the court should maintain the status quo until trial.
  • A registered proprietor who is not in possession cannot demonstrate irreparable injury by restraining the party actually in occupation, since such an injunction operates as a mandatory injunction at the interlocutory stage.
  • At the interlocutory stage, the court must not make definitive or final findings on contested facts.

Court orders

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  1. 1.The status quo obtaining as of today to be maintained pending the hearing and determination of the main suit.
  2. 2.The matter is remitted back to Kimilili Law Court for mention for directions and taking a hearing date.
  3. 3.The costs of this appeal shall be borne by the respondents.
  4. 4.Mention before the Senior Principal Magistrate, Kimilili on 30/05/2024

Authorities

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Legislation

  • Law of Succession Act, Cap 160Section 45(1)

Cases cited (12)

  • James Thendu Gitau & another v John Nginga Magecha
    (2020) eKLR
  • East African Industries v Trufoods
    [1972] EA 420
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • JM v SMK & 4 others
    [2022] eKLR
  • Airland Tours & Travel Limited v National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
  • Esso Kenya Limited. v Mark Makwata Okiya
    Civil Appeal No. 69 of 1991
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Virginia Edith Wambui v Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987 eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Simon Kimemia Muthondu v Moses Mugo Maringa
    [2017] eKLR
On appeal from
Principal Magistrate's Court, Kimilili
Kimilili MC ELC Case No. 13 of 2023
Jurisdiction invoked
First appellate jurisdiction over a subordinate court decision in a land matter

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, "Ndiema & 2 others v Matayo & 2 others (Suing as Legal Representative of Matayo Otola Munyani) (Environment and Land Appeal 21 of 2023) [2024] KEELC 3930 (KLR)", Case Analysis (2024). Bungoma ELC Appeal (memorandum of appeal dated 30th March, 2023) - appeal from Kimilili MC ELC Case No. 13 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3930/eng@2024-05-16

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