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ELCDismissed(Notice of Motion dated 6th March 2024 in the main suit - ELC)· [2024] KEELC 4682 (KLR)

Kibwari PLC & another v Bett & another (Environment & Land Case E011 of 2024) [2024] KEELC 4682 (KLR)

Environment and Land Court
11 June 2024
JOJ.M. ONYANGO
1,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who bought property couldn't get the old occupants evicted because ownership papers alone weren't enough to win early in the case.

What this practically means

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Executive summary

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The Plaintiffs, through a Notice of Motion dated 6th March 2024, sought a temporary injunction to restrain the Defendants from interfering with L.R No. 8451/39 pending the hearing of the suit. The 1st Plaintiff claimed to be the registered owner of the parcel, having purchased it from the 2nd Plaintiff, which had bought part of the original L.R No. 8451/26 from the Defendants. The Plaintiffs contended that the Defendants refused to vacate a 2-acre portion despite the Plaintiffs constructing a residential house, cottage, kitchen and pit latrine with a bathroom for them. The Defendants, David Bett and Rispah Bett, swore a joint replying affidavit confirming occupation of the 2 acres since 1992 and alleging that the 2nd Plaintiff failed to offset their loan of Kshs.4,053,969 with the Agricultural Finance Corporation, leaving an outstanding balance of Kshs.2,367,680.80, and that it was agreed they would retain 2 acres out of L.R No. 8451/39. The court framed a single issue: whether the Applicants had satisfied the conditions for a temporary injunction under Order 40(1) of the Civil Procedure Rules and the Giella v Cassman Brown test. It held that the Applicants failed to establish a prima facie case given the dispute over purchase price and the occupation arrangement; that no irreparable loss not compensable by damages was shown; and that the balance of convenience favoured the Defendants, who have occupied the land since 1992. The court declined the injunction and instead ordered maintenance of the status quo, permitting the Defendants to continue occupying the 2 acres while restraining any waste, construction, sale, transfer, charge or disposition, with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

Not established; the Defendants raised a genuine dispute over non-payment of the purchase price and a subsequent agreement allowing them to occupy the land

Reasoning

Although the Applicants demonstrated registration of the suit property in the 1st Plaintiff's name, the Defendants did not deny the sale chain but alleged non-payment of the balance and an agreement to retain 2 acres. The competing factual claims meant the Applicants' case was not clear enough to amount to a prima facie case with a probability of success at the interlocutory stage.

p. 3
02

Irreparable damage

Holding

Not demonstrated; no averment that the Defendants intend to waste, damage, alienate or dispose of the suit property

Reasoning

The Applicants made no claim that the Respondents threatened to waste or alienate the property before the suit is determined. Without such averment, the Applicants could not show loss that damages would not adequately compensate, and the second Giella condition therefore failed.

p. 3
03

Balance of convenience

Holding

Tilts in the Respondents' favour, who have occupied the suit property since 1992

Reasoning

At the interlocutory stage the court preserves rather than determines rights. Since the Defendants have occupied the 2-acre portion since 1992 and this was not denied, preserving that occupation through maintenance of the status quo best protects both parties pending trial.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and failing which the court decides on the balance of convenience

Court orders

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  1. 1.The status quo obtaining as at the date of the ruling be maintained pending the hearing and determination of the main suit
  2. 2.The Defendants shall continue occupying the portion of land parcel L.R No. 8451/39 measuring 2 acres where they have been staying and shall not waste, construct new structures, part with possession, sell, transfer, charge or dispose of the same until the case is heard and determined
  3. 3.The costs of the application shall be in the cause
Jurisdiction invoked
Order 40(1)(a) and (b) of the Civil Procedure Rules 2010

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, "Kibwari PLC & another v Bett & another (Environment & Land Case E011 of 2024) [2024] KEELC 4682 (KLR)", Case Analysis (2024). (Notice of Motion dated 6th March 2024 in the main suit - ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4682/eng@2024-06-11

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