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ELCPartially AllowedMLDELC46/23 (ELC Case No. 46 of 2023)· [2024] KEELC 4374 (KLR)

Raymond & another (Suing as the administrators for and on behalf of the Estate Raymond Charo Baluna - Deceased) v Attorney General & 3 others (Environment & Land Case 46 of 2023) [2024] KEELC 4374 (KLR)

Environment and Land Court
30 May 2024
MNMwangi Njoroge
999 words in judgment
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The bottom line

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A Kenyan court refused a full injunction over disputed Lamu land but barred the titleholder from selling two plots still in his name until the case is heard.

What this practically means

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Executive summary

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The plaintiffs, asserting ownership through the Estate of the late Raymond Charo Baluna, moved the court by Notice of Motion dated 20th June 2023 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules (1) and (2) seeking an interlocutory injunction restraining the 4th defendant from interfering with an approximately 3-acre portion allegedly hived off from an original 10-acre allotment and folded into Title No. Lamu/Hindi/Magogoni/318, plus an order compelling the OCS Hindi Mokowe to enforce compliance. The 2nd defendant's Land Adjudication & Settlement Officer deponed that Mr. Charo's offer was revised from 10 to 7 acres, the charge discharged in 2012, and that the neighbouring parcel was offered to Abdalla Abdulhakim, later revised to 13 acres, and eventually transferred to Universal Processors Limited. The 4th defendant asserted registered ownership of parcel 318 since 2012, that it had since been subdivided into portions 1151-1154, two of which were sold to third parties, and that any hiving off predated 1995 and was barred by limitation. The court found a possibility that some subdivisions had been sold to non-parties and that the remaining portions were developed and tenanted. Holding that the applicant had established neither a prima facie case nor irreparable loss, and that orders could not issue against non-parties, the court invoked the balance of convenience and ordered the 4th defendant to maintain the status quo over plots 1153 and 1154 and not dispose of them pending trial, with compliance timelines and mention on 30th September 2024 for a hearing date. No costs order was made.

Key legal issues

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01

Prima facie case and irreparable loss for interlocutory injunction

Holding

The plaintiffs failed to establish either a prima facie case or irreparable loss

Reasoning

The court considered the replying affidavits of the Land Adjudication & Settlement Officer and the 4th defendant, which showed the offer letter was revised from 10 acres to 7 acres, the loan was discharged, and the 4th defendant's title issued in 2012. On that material the applicant did not demonstrate a prima facie case or risk of irreparable loss warranting the injunction sought.

p. 3
02

Balance of convenience and orders against non-parties

Holding

The court resorted to the balance of convenience, preserving only the undeveloped portions still in the 4th defendant's name, since other subdivisions had been sold to non-parties

Reasoning

The court found some subdivisions of Lamu/Hindi/Magogoni/318 had been disposed of to persons not party to the proceedings, and the remaining portions were developed and occupied by tenants. Issuing orders affecting plots owned by non-parties would cause injustice; hence only preservation orders over the plots still registered in the 4th defendant's name were appropriate pending joinder or trial.

p. 3
03

Limitation as a bar to recovery of the hived-off portion

Holding

The 4th defendant argued any hiving off occurred before 1995, beyond the limitation period; the court did not determine this at the interlocutory stage

Reasoning

The 4th defendant deponed that the parcel had measured 13 acres since 1995 and any hiving off predated the limitation period for recovery of land. The court did not make a finding on this defence, confining itself to the interlocutory question of preservation.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case and risk of irreparable loss; failing which the court may resort to the balance of convenience to preserve the property
  • The court cannot issue orders binding non-parties to the suit; persons who have acquired subdivided portions must be joined before orders can issue against them

Court orders

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  1. 1.The 4th defendant shall maintain the current status quo of the suit land comprising plots numbers Lamu/Hindi/Magogoni/1153 and Lamu/Hindi/Magogoni/1154
  2. 2.The 4th defendant shall not dispose of Lamu/Hindi/Magogoni/1153 and Lamu/Hindi/Magogoni/1154 until the hearing and determination of the suit
  3. 3.Parties shall comply with the Civil Procedure Rules, the plaintiff within the first 30 days and the defendants within the 30 days following
  4. 4.Mention on 30th September 2024 for issuance of a hearing date for the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rules (1) and (2); Order 51 Rule 1
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Order 40 Rules (1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Raymond & another (Suing as the administrators for and on behalf of the Estate Raymond Charo Baluna - Deceased) v Attorney General & 3 others (Environment & Land Case 46 of 2023) [2024] KEELC 4374 (KLR)", Case Analysis (2024). MLDELC46/23 (ELC Case No. 46 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4374/eng@2024-05-30

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