Nyamwanga v Alfredy & 4 others (Environment & Land Petition E003 of 2024) [2024] KEELC 5695 (KLR)
The bottom line
#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 applicant has met the criteria for the grant of order of temporary injunction pending the hearing and determination of this suit
- 2.Who shall bear the costs of the application
Key legal issues
#Whether the applicant established a prima facie case
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
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.
Whether the balance of convenience favoured the applicant and whether there was delay
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
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.
Legal principles established
#- The conditions for an interlocutory injunction are distinct hurdles to be surmounted sequentially
Court orders
#- 1.Status quo be maintained on the suit land pending the hearing and determination of the petition
- 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.Each party to bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Interim orders of injunction restraining the respondent from constructing on the suit land
The application failed to meet the threshold for grant of temporary injunction; the balance of convenience does not tilt in the applicant's favour and there was inordinate unexplained delay
Interim orders of injunction restraining the 2nd respondent from selling, charging, leasing and transferring the suit land
The application failed to meet the threshold for grant of the orders sought
Costs
Each party to bear their own costs of this application
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.
In the foregone, I hereby find that the present application has failed to meet the threshold for grant of the orders sought. However, in the interest of justice, I hereby direct that status quo be maintained on the suit land pending the hearing and determination of the petition.
Thus, the Land Adjudication Oficer Homa Bay Sub County, the Land Registrar Homa Bay County and the Land Surveyor Homa Bay County are hereby 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 this date.
Each party to bear their own costs of this Application.
in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
Issues in the judgment
#Prayers (a) and (b) of the notice of motion are marked 'Moot' in the judgment without explanation, and the case number of the suit is not stated
Coram lists 'Mr. Robert Ochieng for Bunde 1st respondent' while no party name 'Bunde' appears earlier in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.