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ELCDismissedNot stated in the judgment (suit over LR No. Cis-Mara/Ololulunga/21172)· [2024] KEELC 6802 (KLR)

Chepkwony v Cheruiyot (Enviromental and Land Originating Summons E002 of 2024) [2024] KEELC 6802 (KLR)

Environment and Land Court
17 October 2024
CMC.G. MBOGO
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost an injunction bid because his sale agreement named the wrong parcel number, proving documents must match the exact land you claim.

What this practically means

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Executive summary

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This was a ruling on the plaintiff/applicant's notice of motion dated 24th June 2024 seeking a temporary injunction restraining the defendant/respondent from taking possession, alienating, subdividing, selling, demarcating, transferring or dealing with land parcel LR No. Cis-Mara/Ololulunga/21172 pending the hearing of the main suit, brought under Article 40 of the Constitution, Order 40 Rule 1(a) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act. The plaintiff deposed that he purchased 3.5 acres from Samson Meitamei Kapeen under an agreement dated 16th December 2007 at Kshs. 120,000 per acre, paid the full purchase price, took possession, and has used the land for dairy farming and cultivation; that the parent parcel 6223 was subdivided and his portion transferred to the defendant without colour of right; and that he has been in occupation for over 12 years, claiming adverse possession. The defendant opposed through grounds of opposition and written submissions, contending the application was frivolous, failed the Giella test, and that he held a title issued on subdivision, so any injunction would irreparably prejudice him. The plaintiff filed no submissions. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, the court found the applicant failed at the first hurdle: the sale agreement referred to parcel 6323 rather than 6223, and there was no material proving the defendant's registration as owner. The motion was dismissed with costs in the cause, the court declining to consider the remaining injunction conditions.

Key legal issues

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01

Whether the plaintiff established a prima facie case for a temporary injunction

Holding

The plaintiff did not establish a prima facie case; the sale agreement referred to parcel number 6323 rather than 6223, and there was no material proving the defendant's registration as owner of the suit land

Reasoning

Applying Giella v Cassman Brown and Nguruman Limited, the applicant had first to establish a prima facie case with a probability of success. The plaintiff's sale agreement dated 16th December 2007 referred to parcel Narok Cis/Mara/Olololunga/6323, not 6223 as deposed. The defendant's claim of title appeared only in submissions, without documentary evidence of registration, which the court could not rely on. Having failed the first hurdle, the other conditions need not be considered.

p. 3

Legal principles established

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  • The grant of a temporary injunction requires the applicant to establish a prima facie case, demonstrate irreparable injury, and show that the balance of convenience lies in his favour, applied sequentially as distinct hurdles

Court orders

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  1. 1.The notice of motion dated 24th June, 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 40 Rule 1(a); Order 51 Rule 1
  • Civil Procedure ActSections 1, 1A, 3, 3A and 63(e)

Cases cited (3)

  • Giella v Cassman Brown
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR
Jurisdiction invoked
Article 40 of the Constitution; Order 40 Rule 1(a), Order 51 Rule 1 of the Civil Procedure Rules; Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure 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, "Chepkwony v Cheruiyot (Enviromental and Land Originating Summons E002 of 2024) [2024] KEELC 6802 (KLR)", Case Analysis (2024). Not stated in the judgment (suit over LR No. Cis-Mara/Ololulunga/21172). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6802/eng@2024-10-17

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