[2014] KEELC 135 (KLR)
The court found that the plaintiff had demonstrated a prima facie case with a probability of success by providing uncontroverted evidence of ownership of the suit land and showing that the defendant entered and occupied part of the land without consent. The defendant failed to file any response or defence, leaving...
Source-derived case information.
- Citation
- [2014] KEELC 135 (KLR)
- Parties
- Plaintiff: Abraham Kiptanui Kipkech; Defendant: Ben Changwony Kiprop
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 115 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application for injunction allowed
- Legal Topics
- Injunctive Relief, Ownership Disputes, Unlawful Entry, Eviction, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abraham Kiptanui Kipkech
Plaintiff
Ben Changwony Kiprop
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the defendant unlawfully entered and occupied the plaintiff's land without consent.
- 3 Whether the plaintiff is entitled to restraining orders pending determination of the suit.
Ratio Decidendi
The court found that the plaintiff had demonstrated a prima facie case with a probability of success by providing uncontroverted evidence of ownership of the suit land and showing that the defendant entered and occupied part of the land without consent. The defendant failed to file any response or defence, leaving the plaintiff's evidence unchallenged. Applying the principles for grant of interlocutory injunctions, the court held that the plaintiff was entitled to the injunctive relief sought to preserve the status quo pending the hearing and determination of the main suit.
Court Disposition
application for injunction allowed
Orders
- The defendant and/or his servants/agents/assigns are restrained from entering, being upon, cultivating, developing, or in any other way utilizing or interfering with land parcel Lelan/Kaptalamwa/658 pending hearing and determination of the suit.
- Costs of the application shall be costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L NO. 115 OF 2014
ABRAHAM KIPTANUI KIPKECH..............................................PLAINTIFF
VS
BEN CHANGWONY KIPROP..................................................DEFENDANT
(Application for injunction; plaintiff owner of suit land; defendant alleged to have entered suit land without permission of plaintiff; defendant not filing any response to the application; material tabled by the applicant uncontroverted; prima facie case established; application allowed)
RULING
Through a plaint filed on 10 April 2014, the plaintiff has pleaded that he is the legal owner of the land parcel Lelan/Kaptalamwa/658 measuring 46 acres (the suit land). It is his case that on 1 March 2014, the defendant unlawfully entered the land and fenced off 4 acres of it without the consent or authority of the plaintiff. He has pleaded that the defendant is a total stranger to him, and despite a demand being given to him to vacate the said land, the defendant has refused to do so hence this litigation. The main prayers sought in the plaint are orders of eviction and a permanent injunction against the defendant.
Together with the plaint, the plaintiff filed an application for injunction which is the subject of this ruling. The plaintiff wants the defendant restrained from the suit land pending hearing and determination of this suit. To the supporting affidavit, the plaintiff has annexed a copy of the title.
Despite being served, the defendant has not yet entered appearance nor filed defence. Neither has he bothered to file any response to this application. The material before me is only that availed by the plaintiff. The same demonstrates that the plaintiff is the lawful owner of the suit land. The defendant had opportunity to show that he is entitled to be on the suit land which he has not. Clearly, the plaintiff has demonstrated a prima facie case with a probability of success. He is entitled to an injunction.
I therefore allow this application for injunction. I order the defendant and/or his servants/agents/assigns, not to enter, be upon, cultivate, develop, or in any other way utilize or interfere with the land parcel Lelan/Kaptalamwa/658 pending hearing and determination of this suit.
Costs of the application shall be costs in the cause.
It is so ordered.
DATED AND DELIVERED AT ELDORET THIS 16TH DAY OF OCTOBER 2014
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Delivered in the presence of:
Delivered in the presence of:
N/A for M/s Manani Lilan & Co Advocates for plaintiff.
N/A for defendant who has not entered appearance.