Mulipa v Mr and Mrs Bibiyani and Other Unknown (Land Cause 105 of 2016) [2017] MWHC 119 (22 May 2017)

Case summary

The court considered an application for the continuation of an order of injunction to restrain the defendants from trespassing or encroaching on the plaintiff’s land, pending the determination of the plaintiff’s claim. The plaintiff alleged that she purchased customary land from the daughter of its previous owner. The plaintiff enjoyed possession of the land, until the defendants alleged that the land was their grandfather’s and the seller had no authority to sell it. Although, the plaintiff argued that she had ownership of the land, the defendants argued that customary land could not be sold or bought, thus she had no right to protect. 

The court considered the temporary injunction and whether the plaintiff had disclosed a triable claim. It  found that where the applicant had disclosed a good claim to the right, the court would then consider whether damages was an adequate remedy. The court found that the plaintiff’s use of the word bought was incorrect, stating that she parted with money in exchange to acquire the right to use and occupy the land, she however, had a triable right to protect. The court held that the remedy of damages was not adequate as the land was unique. 

In conclusion, the court found that the balance of convenience favoured the status quo in protecting the land, used and occupied by the plaintiff until the outcome of the trial and upheld the application

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