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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 5695 (KLR)

Nyamwanga v Alfredy & 4 others (Environment & Land Petition E003 of 2024) [2024] KEELC 5695 (KLR)

Environment and Land Court
23 July 2024
GOG.M.A Ongondo
1,953 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Homa Bay on a notice of motion dated 21st March 2024 by the petitioner/applicant, Liander Odero Nyamwanga, who claimed ownership of land parcel Kanyada/Kanyango/Kalanya/3729 (suit land) following land adjudication. He sought temporary injunctions restraining the 1st and 2nd respondents from constructing on, selling, charging, leasing or transferring the suit land, and an order directing the 3rd and 4th respondents to measure and determine the suit land's acreage. The 1st respondent asserted he purchased the land in 1993 from the applicant; the 2nd respondent claimed to be a bona fide purchaser for value without notice in possession and with a constructed home; the State respondents asserted the applicant was not the legal owner and that the claim was time-barred under the Limitation of Actions Act, the dispute having previously been litigated at the Chief Magistrate's Court at Homa Bay (ELC No. 10 of 2023). Applying the Giella and Nguruman principles, the court found the applicant had established a prima facie case by invoking Article 40, but failed on the balance of convenience since the 2nd respondent was in possession, and noted inordinate unexplained delay. The application therefore substantially failed on the injunctive prayers. However, the court directed that status quo be maintained pending determination of the petition, and ordered the Land Adjudication Officer, Land Registrar and Land Surveyor for Homa Bay to measure the suit land and file reports within 60 days. Each party was to bear its own costs.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

The applicant satisfied the prima facie case requirement by invoking his right to property under Article 40, shifting the burden to the respondents to rebut

Reasoning

The applicant averred that his right to property under Article 40 of the Constitution was being or was likely to be violated by the respondents. Applying the Mrao definition of a prima facie case, the court held that this assertion shifted the evidential burden onto the respondents to explain or rebut the claim, and thus the first Giella requirement was satisfied.

p. 4
02

Whether the balance of convenience favoured the applicant and whether there was delay

Holding

The balance of convenience did not favour the applicant; the 2nd respondent is in possession and has constructed a home, and the application was lodged after inordinate unexplained delay

Reasoning

Despite a prima facie case, the court found the 2nd respondent in possession of the suit land having constructed a home thereon, so the balance of convenience did not tilt towards the applicant. Further, the application and petition were lodged after inordinate delay of some thirty years from the alleged cause of action, and that delay was not explained, defeating the injunction.

p. 4

Legal principles established

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  • The conditions for an interlocutory injunction are distinct hurdles to be surmounted sequentially

Court orders

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  1. 1.Status quo be maintained on the suit land pending the hearing and determination of the petition
  2. 2.The Land Adjudication Officer Homa Bay Sub County, the Land Registrar Homa Bay County and the Land Surveyor Homa Bay County are directed to visit the suit land to measure and determine the actual and exact acreage of the same and file their reports in court within 60 days from the date of the ruling
  3. 3.Each party to bear their own costs of the application
Jurisdiction invoked
Articles 40 and 162(2)(b) of the Constitution of Kenya, 2010; Rules 3, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; Section 3 of the Environment and Land Court Act

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, "Nyamwanga v Alfredy & 4 others (Environment & Land Petition E003 of 2024) [2024] KEELC 5695 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5695/eng@2024-07-23

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