[2017] KEELC 3675 (KLR)
The court found that the Plaintiff had demonstrated a prima facie case by showing he purchased the suit premises from Salim Bayusuf and that there was no evidence of the Defendant's proprietary interest in the property. In the absence of any opposition or evidence to the contrary from the Defendant, the court...
Source-derived case information.
- Citation
- [2017] KEELC 3675 (KLR)
- Parties
- Plaintiff: Badawi Muhudhari Mohamed; Defendant: Maimuna Ali Athman
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 169 of 2016
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Ownership Dispute, Unregistered Land, Prima Facie Case
- 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
Badawi Muhudhari Mohamed
Plaintiff
Maimuna Ali Athman
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of a temporary injunction restraining the Defendant from interfering with the suit property.
- 2 Whether the Defendant has any proprietary interest in the unregistered plot at Bajuri/Taifa in Lamu County.
- 3 Whether the Plaintiff is entitled to costs of the application.
Ratio Decidendi
The court found that the Plaintiff had demonstrated a prima facie case by showing he purchased the suit premises from Salim Bayusuf and that there was no evidence of the Defendant's proprietary interest in the property. In the absence of any opposition or evidence to the contrary from the Defendant, the court concluded that the Plaintiff was entitled to the temporary injunction sought, restraining the Defendant from interfering with the suit property pending the hearing and determination of the case. The court also awarded costs of the application to the Plaintiff.
Court Disposition
application allowed
Orders
- A temporary injunction is issued restraining the Defendant, her agents, relatives, or servants from staying in the house or selling and/or in any other manner interfering with the unregistered plot situated at Bajuri/Taifa in Lamu County pending interparty hearing.
- The costs of the application are to be met by the Defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 169 OF 2016
BADAWI MUHUDHARI MOHAMED..........................PLAINTIFF
=VERSUS=
MAIMUNA ALI ATHMAN.........................................DEFENDANT
R U L I N G
1. What is before me is the Application dated 25th January, 2016 in which the Plaintiff is seeking for the following orders:
(a) THAT a temporary injunction order be issued restraining the Respondent either by herself or their agents, relatives or servants from staying in the house or selling and/or in any other manner whatsoever interfering with the premise/house being unregistered plot situated at Bajuri/Taifa in Lamu County pending the interparty hearing of this Application.
(b) THAT the Respondents act are unlawful, illegal against Islamic Law and might raise to criminal charges as he has no right of benefit and allowed to stay in the house bearing in mind that she is not a wife.
(c) THAT, the costs of this application be met by the Respondent.
2. The Application is premised on the ground that the Plaintiff is the purchaser of the unregistered plot situate at Bajuri /Taifa in Lamu County (the suit property); that he purchased the suit property from the late Salim Bayusuf in the year 1994 and that the Plaintiff never executed any contract with the Respondent or any other person.
3. The Applicant deponed that the Respondent is using the house on the suit property by claiming that she is the owner; that the Respondent has no rights of ownership over the said land and that the orders being sought should be granted.
4. Althought the Defendant filed a Defence together with the witness statements, she did not file a Replying Affidavit or Grounds of Opposition in response to the Plaintiff's Application. The said Application is therefore unopposed.
5. The Plaintiff's advocate filed brief submissions which I have considered.
6. The evidence before the court shows that it is the Plaintiff who purchased the suit premises from Salim Baysuf after securing a loan from KCB.
7. In the absence of evidence to show the Defendant's proprietary interest in the suit premises, I find and hold that the Plaintiff has established a prima facie case with chances of success.
8. For those reasons, I allow the Application dated 25th June, 2016 in terms of prayer number (a) and (c).
Dated, signed and delivered in Malindi this 3rdday of February, 2017.
O. A. Angote
Judge