Kutto & 3 others v EMO Investment Ltd & another (Environment & Land Case E011 of 2022) [2022] KEELC 3315 (KLR)
The bottom line
#The Eldoret Environment and Land Court refused to stop land transactions sought by buyers who paid Kshs.24.7 million, finding they delayed ten years and showed no strong case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs' claim is statute barred
- 2.Whether the Plaintiffs have met the legal threshold for the grant of an injunction
- 3.Who pays the costs of the application
Key legal issues
#Limitation of the Plaintiffs' claim
The claim is not statute barred; the cause of action arose on or after 15th October 2011 when the Exit agreement was entered into and the lands were transferred to the 2nd Defendant
The defendants argued the claim, filed in 2021, contravened section 7 of the Limitation of Actions Act because the transactions occurred in 2006-2007. The court found no evidence of any dispute between the plaintiffs and the 1st Defendant before the lands were registered in the 2nd Defendant's name, so time could not have begun to run earlier. No notice of preliminary objection had been filed, but the court considered limitation as a jurisdictional issue.
Whether the Plaintiffs established a prima facie case
No; although the payment of Kshs.24.7 million was admitted, the plaintiffs did not explain their delay in bringing the suit and failed to establish a prima facie case with probability of success
Both defendants admitted receipt of the Kshs.24.7 million, but no sale agreement was ever drawn because the agreed Kshs.200 million deposit was not raised. The 2nd Defendant deposed the money was converted to shares. The plaintiffs did not disclose when they learnt of the 2011 exit agreement nor explain the delay until 2022. Applying the Mrao standard, the evidence showed no infringement of a right with probability of success.
Irreparable injury and balance of convenience
The plaintiffs failed all three Giella hurdles; declining the injunction carried the lower risk of injustice
Having failed on the first limb, the plaintiffs could not obtain the injunction. The court also considered the extended test of opting for the lower risk of injustice and concluded that refusing the injunction was the course carrying the lower risk of injustice, given third-party contractual obligations over portions of the land.
Legal principles established
#- Limitation runs from when the plaintiffs' cause of action accrued, here upon transfer of the lands to the 2nd Defendant, not from the earlier payment transactions
- An applicant for an interlocutory injunction must surmount all three Giella hurdles sequentially
Court orders
#- 1.The Plaintiffs' notice of motion dated 9th February 2022 is dismissed
- 2.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Constitution; application brought under Order 40 and Order 51 of the Civil Procedure Rules, 2010
Relief refused
#Temporary injunction restraining the Defendants from trespassing, erecting structures, offering for sale, alienating or interfering with the suit parcels pending hearing of the suit
Plaintiffs failed to establish a prima facie case with a probability of success and did not surmount the Giella hurdles
Stay of all transactions, sales, subdivisions and transfers of the suit parcels pending hearing
Declining the injunction carried the lower risk of injustice
Costs
Application dismissed with costs in the cause, notwithstanding section 27 of the Civil Procedure Act, due to the history and relationship between the parties.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the court is agrees with the Plaintiffs' position that their cause of action could only have arisen after the 1st Defendant transferred the lands that they believed they had interests on, to the 2nd Defendant, and not before.
In the circumstances, I find that Plaintiffs have not established a prima facie case with a probability of success.
The Plaintiffs herein have not successfully attained any of the three hurdles, and have consequently not met the threshold for the grant of the injunctive relief sought in their application.
That though the Plaintiffs' application is found to be without merit, the court is of the considered view that due to the history and relationship between the parties, the costs in the application be in the cause not withstanding the provision of section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya.
That flowing from the foregoing, the Plaintiffs' notice of motion dated the 9th February 2022 is without merit and is dismissed with costs in the cause.
Issues in the judgment
#The notice of motion cites non-existent and inapplicable provisions; the court notes sections 2A and 2B do not exist in the Civil Procedure Act and Order 10 and Order 22 do not concern injunctions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kutto & 3 others v EMO Investment Ltd & another (Environment & Land Case E011 of 2022) [2022] KEELC 3315 (KLR)", Case Analysis (2022). Not stated in the extract (ELC, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3315/eng@2022-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.