[2018] KEELC 304 (KLR)
The court found that the Plaintiff failed to establish a prima facie case because he did not provide the Sale Agreement or evidence of consideration paid for the land. The Plaintiff was not in possession of the suit land, and the Defendant was in occupation. The court held that the Plaintiff did not demonstrate he...
Source-derived case information.
- Citation
- [2018] KEELC 304 (KLR)
- Parties
- Plaintiff: Alex Kyalo Mutua; Defendant: King’oo Ngulasa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 419 of 2017
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Title to Land, Burden of Proof, Possession, Sale of Land, Irreparable Damage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Kyalo Mutua
Plaintiff
King’oo Ngulasa
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction.
- 2 Whether the Plaintiff will 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 failed to establish a prima facie case because he did not provide the Sale Agreement or evidence of consideration paid for the land. The Plaintiff was not in possession of the suit land, and the Defendant was in occupation. The court held that the Plaintiff did not demonstrate he would suffer irreparable harm that could not be compensated by damages if the injunction was not granted. Consequently, the Plaintiff did not meet the threshold for the grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co Ltd.
Court Disposition
application dismissed with costs
Orders
- The Plaintiff’s Application dated 9th October, 2017 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 419 OF 2017
ALEX KYALO MUTUA..................................................PLAINTIFF
VERSUS
KING’OO NGULASA.................................................DEFENDANT
RULING
1. In the Application dated 9th October, 2017, the Plaintiff is seeking for the following orders:
a. That pending the inter-partes hearing and determination of this suit, the Defendant, his servants, agents, family members and or in any manner howsoever be restrained from farming on, grazing on, building on, entering, trespassing, advertising, leasing, charging, selling, dealing with, conveying, sub-dividing, encroaching on and/or remaining on the Plaintiff’s land title number Machakos Town Block 3/695 (the land) and/or interfering with the Plaintiff’s registered, legal, contractual, equitable interests and/or rights of quiet ownership, possession, occupation and enjoyment thereof.
b. That pending the inter-partes hearing and determination of this suit, the Defendant, his servants and/or agents including his family members be restrained from chasing and/or denying the Plaintiff/Applicant access to his land parcel no. Machakos Town Block 3/695 (the land).
2. The Application is premised on the grounds that the Plaintiff is the registered proprietor of a parcel of land known as Machakos Town Block 3/695 (the suit land);that the Plaintiff purchased the suit land from Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited (the Society)and that the Defendant trespassed on the land in the year 2016 and erected illegal structures thereon.
3. The Plaintiff deponed that after the Defendant trespassed on the suit land, he started sub-dividing the said land and that unless an order of injunction is issued, he will suffer irreparably.
4. In his response, the Defendant deponed that he has settled on the land; that the Plaintiff’s claim that he is the registered proprietor of the suit land is suspect and dubious; that there is no Agreement of Sale to show that the Plaintiff purchased the land from the Society and that he has built a permanent house on the suit land.
5. In the Further Affidavit, the Plaintiff deponed that the Respondent has not furnished to the court any ownership documents; that the Respondent’s building was hurriedly built and is unapproved and that being the registered owner, the orders of injunction should issue.
6. Both the Plaintiff’s and the Defendant’s advocates filed submissions and authorities which I have considered.
7. The Plaintiff’s case is that he purchased the suit land from Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited (the Society)and that he was issued with a Title Deed. The Title Deed that was annexed on the Plaintiff’s Affidavit shows that the same was issued to the Plaintiff on 25th October, 2016. The Plaintiff has also annexed a copy of the letter of the Society in which the Society’s officials informed the County Land Registrar that they had no objection with the issuance of the Title Deed to the Plaintiff.
8. However, the Plaintiff did not annex the Agreement of Sale that he entered into with the Society for the sale of the said land. Not being a member of the Society, the Plaintiff is expected to have paid a consideration for the suit land. The Plaintiff did not inform the court how much he paid for the land.
9. It is trite that a Title Deed is an end product of a process. The process of acquiring a Title includes entering into a Sale Agreement with the Transferor and signing the Transfer form. The burden of proving that one obtained a Title Deed lawfully lies with the Plaintiff.
10. Having not showed the Agreement that he entered into with the Society in respect of the suit land, I find that the Plaintiff has not established a prima facie case with chances of success. Indeed, the Plaintiff is not in possession of the suit land. The Plaintiff has admitted that the Defendant is the one who is in possession of the suit land, meaning that he will not suffer any irreparable damage that cannot be compensated by way of damages if the injunctive order is not granted.
11. Consequently, and for the reasons I have given above, I dismiss the Plaintiff’s Application dated 9th October, 2017 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 7TH DAY OF DECEMBER, 2018.
O.A. ANGOTE
JUDGE