[2016] KEELC 1202 (KLR)
The court found that the plaintiff had demonstrated a prima facie case with a probability of success by producing an allotment letter dated 18th June, 2012 and evidence of payment of requisite fees. The defendant failed to file any response or demonstrate any rights over the suit property. The court held that unless...
Source-derived case information.
- Citation
- [2016] KEELC 1202 (KLR)
- Parties
- Plaintiff: Alfred Kipkoech Korir; Defendant: Mary Cherotich Busienei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2015
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application for injunction allowed
- Judges
- MA Silau
- Legal Topics
- Injunctive Relief, Allotment Letters, Trespass, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Kipkoech Korir
Plaintiff
Mary Cherotich Busienei
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of an injunction.
- 2 Whether the plaintiff stands to suffer irreparable loss 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 demonstrated a prima facie case with a probability of success by producing an allotment letter dated 18th June, 2012 and evidence of payment of requisite fees. The defendant failed to file any response or demonstrate any rights over the suit property. The court held that unless restrained, the defendant would continue to waste the property, causing loss to the plaintiff. Applying the principles in Giella v Cassman Brown, the court concluded that the plaintiff was entitled to an interlocutory injunction restraining the defendant from entering, developing, or making any structures on the suit property pending the hearing and determination of the suit.
Court Disposition
application for injunction allowed
Orders
- Pending the hearing and determination of this suit, the defendant (and/or her servants/agents) is hereby restrained from entering, being upon, developing or making any structures, on the property described as UNS. Residential Plot No. 172 - Kericho Municipality.
- The plaintiff shall have the costs of the application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT KERICHO
ENVIRONMENT AND LAND CASE NO.46 OF 2015
ALFRED KIPKOECH KORIR....................PLAINTIFF
VERSUS
MARY CHEROTICH BUSIENEI..............DEFENDANT
R U L I N G
(Application for injunction; principles to be applied; plaintiff having an allotment letter to property; defendant not opposing application; application allowed.)
The application before me is the motion dated 28th September, 2015 filed by the plaintiff. It is an application brought inter alia pursuant to the provisions of Order 40 Rule 1 of the Civil Procedure Rules, 2010. It is an application for injunction vide which the plaintiff wants the defendant restrained from the suit property which is described as UNS. Residential Plot No. 172 - Kericho Municipality.
It is the plaintiff's case that she was issued with an allotment letter to this property on 18th June, 2012 and she paid the requisite fees. In the year 2015, her allotment letter got lost and she reported its loss to the police station. On 22nd September 2015, the defendant, without the authority of the plaintiff, trespassed into the suit property and started digging a pit latrine. It is the plaintiff's case that this is in violation of her proprietary rights. The plaintiff therefore wants the defendant restrained from all activities on the suit property pending hearing and determination of her suit.
The defendant has not filed anything to oppose the application and has not even entered appearance despite being duly served. The only material before me is therefore that tabled by the plaintiff.
To succeed in an application for injunction, an applicant needs to demonstrate a prima facie case with a probability of success and also show that she stands to suffer irreparable loss. If in doubt, the court will decide the application on a balance of convenience. These principles were laid down in the case of Giella vs Cassman Brown (1973) EA 358.
To her application, the plaintiff has annexed a copy of the allotment letter which I can see is dated 18th June, 2012. The defendant has not brought forth anything to demonstrate that she has any rights over the suit property. I am therefore of the opinion that the plaintiff has demonstrated a prima facie case with a probability of success. Unless restrained, the defendant will continue wasting the property which will cause loss to the plaintiff.
I therefore allow the application for injunction and issue the following orders :-
(a) That pending the hearing and determination of this suit, the defendant (and/or her servants/agents) is hereby restrained from entering, being upon, developing or making any structures, on the property described as UNS. Residential Plot No. 172 - Kericho Municipality.
(b). The plaintiff shall have the costs of the application.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 29TH DAY OF JANUARY, 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
In the presence of;
Mr. Brian Langat holding brief for Mr. G.B.M Moturi for the plaintiff/applicant.
Defendant- absent
Court Assistant- Mr. Kenei