[2012] KEHC 3846 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the documentary evidence did not demonstrate his proprietary interest in the suit property. The transfer document did not name the plaintiff as a transferee, and the letter of consent only referenced one of...
Source-derived case information.
- Citation
- [2012] KEHC 3846 (KLR)
- Parties
- Plaintiff: Barnabas Simiyu Munialo; Defendant: Arnold Musa Masinde
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 8 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Temporary Injunctions, Proprietary Interest, Prima Facie Case, Irreparable Injury, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barnabas Simiyu Munialo
Plaintiff
Arnold Musa Masinde
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether the plaintiff stands to suffer irreparable injury if the injunction is not granted.
- 3 Whether the balance of convenience favors granting or denying the injunction.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the documentary evidence did not demonstrate his proprietary interest in the suit property. The transfer document did not name the plaintiff as a transferee, and the letter of consent only referenced one of the alleged partners. The plaintiff also failed to show that he would suffer irreparable injury if the injunction was not granted. Consequently, the court held that the balance of convenience required maintaining the status quo pending the hearing and determination of the suit, and dismissed the application for want of merit.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for a temporary injunction is dismissed with costs.
- The status quo to be maintained pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KITALE
Civil Suit 8 of 2012
BARNABAS SIMIYU MUNIALO :::::::::::::::::::::::::::::::::::::::: PLAINTIFF.
VERSUS
ARNOLD MUSA MASINDE :::::::::::::::::::::::::::::::::::::::::: DEFENDANT.
R U L I N G.
This is an application by the plaintiff for a temporary injunction to issue against the defendant, his servants/agents restraining them from ploughing, leasing, selling, constructing structures or in any other way interfering with the plaintiff’s peaceful use and possession of one hundred and fifty five (155) acres of the portion of land described as L.R. No. 5569/2 Saboti pending hearing and determination of this suit. The application is grounded on facts that the plaintiff is the owner of the suit property and that the defendant has no proprietary interests rights thereon. That, the defendant has begun selling the land without authority and that third parties are now erecting illegal structures thereon. Further, that unless the defendant is restrained, the plaintiff is likely to suffer substantial loss and damage.
In the supporting affidavit deponed by the plaintiff dated 9th February, 2012 there is a transfer dated 6th February, 1969 (Annexture marked “BSM 2”) showing that the suit property was lawfully transferred to JaminMusundi, Joseph Wabuyele and Joseph Wandabwa. There is also a memorandum of agreement dated 7th March, 1970 (Annexture marked ‘BSM 1) signed between the said JaminMusundi, Joseph Wabuyele, Joseph Wandabwa and the plaintiff Barnabas Simiyu. The memorandum related to the formation of a business partnership by the four people. His connection with the transfer of the land to three of those people is not shown. The plaintiff is not one of the three people. It is alleged ownership of the material portion is not established by the transfer.
The letter of consent (Annexture “BSM 3’) does not indicate the names of the parties expected to benefit from the proposed sub-division save JaminMusundi. The letter alone is insufficient in establishing the plaintiff’s alleged proprietary interest in the land. From all the foregoing it is impossible to hold that the plaintiff has established a prima-facie case with probability of success. The plaintiff has also failed to establish that he stands to suffer irreparable injury if an injunction is not granted at his juncture.
The balance of convenience dictates that the “status-quo” existing be maintained pending hearing and determination of the suit. In sum, the present application is dismissed with costs for want of merit.
[Read and signed this 14th day of June, 2012. ]
[In the presence of M/s. Arunga Adv.forWanyonyi.]
J.R. KARANJA.
JUDGE.