[2015] KEELC 213 (KLR)
The court found that the Plaintiff had established a prima facie case by producing a letter of allotment and a deed plan for Plot No. 9313, Malindi, showing he was the lawful allottee. The Defendants failed to demonstrate any proprietary interest in the property. The court further held that the Plaintiff was likely...
Source-derived case information.
- Citation
- [2015] KEELC 213 (KLR)
- Parties
- Plaintiff: Abdulrazak Muhsin Sheriff; Defendant: Kadzo Masha Kazungu; Defendant: Morris Mulewa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed; interlocutory injunction granted.
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Land Allotment, Trespass, Proprietary Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdulrazak Muhsin Sheriff
Plaintiff
Kadzo Masha Kazungu
Defendant
Morris Mulewa
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case to warrant the grant of a temporary injunction against the Defendants.
- 2 Whether the Plaintiff is likely to suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the Plaintiff had established a prima facie case by producing a letter of allotment and a deed plan for Plot No. 9313, Malindi, showing he was the lawful allottee. The Defendants failed to demonstrate any proprietary interest in the property. The court further held that the Plaintiff was likely to suffer irreparable harm if the Defendants were allowed to continue dealing with the property, as they had previously attempted to erect structures on the land. Applying the principles in Giella v Cassman Brown, the court concluded that the Plaintiff met the threshold for the grant of an interlocutory injunction and allowed the application as prayed.
Court Disposition
Application allowed; interlocutory injunction granted.
Orders
- A temporary injunction is issued restraining the Defendants, their agents, servants, employees, legal representatives or any other person claiming interest through them from planting, cultivating, trespassing, entering, remaining, selling, alienating, or dealing with Plot No. 9313, Malindi, or undertaking any...
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.104 OF 2013
ABDULRAZAK MUHSIN SHERIFF............................PLAINTIFFS/APPLICANT
=VERSUS=
1. KADZO MASHA KAZUNGU
2. MORRIS MULEWA...............................................DEFENDANTS/APPLICANTS
R U L I N G
1. The Application by the Plaintiff is he one dated 21st June 2013 seeking for the following orders:
(a) THAT pending the hearing and determination of this Application, a temporary injunction does issue against the Defendants either by themselves, servants, agents, employees, legal representatives or any other person claiming interest through them from planting or cultivating, trespassing, entering, remaining, selling, alienating or dealing with the suit property in any manner whatsoever and to cease any or any further construction or undertaking any development or otherwise upon the Plaintiffs' portion of land known as Plot No.9313, situated in Malindi constituency within Kilifi county pending the hearing and determination of this Application interpartes.
(b) THAT pending the hearing and determination of this suit, an injunction do issue against the defendants either by themselves, servants, agents, employees, legal representatives or any other person claiming interest through them from planting or cultivating, trespassing, entering, remaining, selling, alienating, or dealing with the suit property in any manner whatsoever and to cease any or any further construction or undertaking any development or otherwise upon the Plaintiff's portion of land known as PLOT NO.9313, situated at Malindi Constituency within Kilifi County.
2. The Application is premised on the ground that the Plaintiff is the allottee from the Government of Kenya of plot number 9313 Malindi.
3. In support of the Application, the Plaintiff has annexed on the Supporting Affidavit the letter of allotment which was issued to him dated 4th August 1994 and a receipt showing the payment he made to the Government.
4. The Plaintiff has also annexed the Deed Plan for portion number 9313 that was approved by the Director of Surveys on 6th December 2012.
5. In her Replying Affidavit the 1st Defendant denied having trespassed on the suit property.
6. In his submissions dated 28th July 2015, the Defendants' advocate submitted that considering the age of the Application, and considering that the Respondents' building on the suit property was demolished at an interlocutory stage, the status quo should be maintained until the suit is heard and determined.
7. In view of the fact that the Respondents have not shown their proprietary interest on the suit property, and having perused the letter of allotment that was issued to the Plaintiff and the Deed Plan, I find and hold that the Plaintiff has established a prima facie case with chances of success.
8. The Plaintiff is also likely to suffer irreparable damage that cannot be compensated if the Defendants are allowed to deal with the suit property before the hearing of the suit, as they have attempted to do before by putting up structures in the land.
9. For those reasons, I allow the Application dated 21st June 2013 as prayed.
Dated and delivered in Malindi this 2nd day of October2015.
O. A. Angote
Judge