[2015] KEELC 123 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case as the 1st plaintiff lawfully acquired the suit property by transmission and sold it to the 2nd plaintiff. The defendants failed to provide any material evidence of entitlement to the property and did not respond to the application, leaving the...
Source-derived case information.
- Citation
- [2015] KEELC 123 (KLR)
- Parties
- Plaintiff: Beatrice Chemutai Koskey (Suing as the Legal Representative and administrator of the estate of John Maritim Koskei (deceased)); Plaintiff: Chepkwony David Terer; Defendant: Kennedy Kipyegon Maritim; Defendant: Dennis Kipchumba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 87 of 2015
- Procedural Posture
- Injunction Application / Interlocutory Application Ruling
- Outcome
- Interlocutory injunction granted in favour of the plaintiffs.
- Judges
- MA Silau
- Legal Topics
- Injunctive Relief, Fraudulent Transfer, Succession and Transmission, Eviction, Title Disputes
- 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
Beatrice Chemutai Koskey (Suing as the Legal Representative and administrator of the estate of John Maritim Koskei (deceased))
Plaintiff
Chepkwony David Terer
Plaintiff
Kennedy Kipyegon Maritim
Defendant
Dennis Kipchumba
Defendant
Procedural Posture
Injunction Application / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the defendants have any legal entitlement to the suit property.
- 3 Whether the defendants' actions in forcefully entering and occupying the property were lawful.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case as the 1st plaintiff lawfully acquired the suit property by transmission and sold it to the 2nd plaintiff. The defendants failed to provide any material evidence of entitlement to the property and did not respond to the application, leaving the plaintiffs' averments uncontroverted. The defendants' forceful entry and eviction of the 2nd plaintiff were unlawful, and any grievances should have been addressed through legal proceedings rather than self-help. The court therefore granted the interlocutory injunction restraining the defendants from interfering with the plaintiffs' possession of the suit property, ordered them...
Court Disposition
Interlocutory injunction granted in favour of the plaintiffs.
Orders
- Defendants are restrained from entering, being upon, or in any other way interfering with the plaintiffs' possession of the suit property pending hearing and determination of the suit.
- If defendants are in possession, they are ordered to vacate and stay away for the duration of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 87 OF 2015
BEATRICE CHEMUTAI KOSKEY( Suing as the Legal Representative and administrator of the estate of JOHN MARITIM KOSKEI ( deceased)..……..1st PLAINTIFF
CHEPKWONY DAVID TERER ………...……….2ND PLAINTIFF
VERSUS
KENNEDY KIPYEGON MARITIM …......…1ST DEFENDANT
DENNIS KIPCHUMBA …………...…..…..2ND DEFENDANT
RULING
(Application for injunction; no response to application; 1st plaintiff having acquired suit property by transmission and selling to 2nd defendant; injunction issued against defendants).
1. This suit was commenced by way of plaint filed on 24 March 2015, which was later amended on 30 March 2015. The 1st plaintiff is the legal representative of the Estate of the late John Maritim Koskei. He did acquire by way of transmission the land parcel Nakuru/Korao Settlement Scheme/239 which he later sold to the 2nd plaintiff in the year 2007 although transfer is yet to be effected. The 2nd defendant has averred that he moved into the property and started cultivating it. It is pleaded that unknown to the 1st plaintiff, the defendants fraudulently processed the title deed to the suit property and on 27 February 2015, the defendants in the company of marauding youth, forcefully gained entry into the property and demolished 3 of 5 structures put up by the 2nd plaintiff. They also proceeded to erect a structure and occupied part of the land. On 17 March 2015, the defendants demolished the 2nd plaintiff's remaining 2 houses thus displacing him and his family. In the suit, the plaintiffs have sought orders that they are the lawful owners of the suit property; vacant possession; surrender of the original title deed; eviction and a permanent injunction.
2. The plaintiffs also filed an application for injunction, to restrain the defendants from the suit property pending hearing of the suit. It is that application which is the subject of this ruling. The application is supported by the affidavit of the 1st plaintiff which has more or less repeated the averments that I have outlined above. There is no reply to the application although the defendants have entered appearance and filed defence. In their defence, they have pleaded that the land comprises the estate of their deceased father and they are fully entitled to the same. They also want orders to have the 2nd plaintiff forcefully evicted as he purchased the land without the consent of the family.
3. I have considered the application. As I stated earlier, the defendants have not responded to it. The averments of fact contained in the supporting affidavit are therefore uncontroverted. I have seen a copy of the Certificate of Confirmation of Grant issued in Nakuru High Court Succession Cause No. 240 of 1995. The same shows that the whole of the suit property was devolved to the 1st plaintiff. I have also seen an agreement dated 22 September 2007 through which the suit property was sold to the 2nd plaintiff. I have similarly seen a copy of the title deed to the suit property which was issued on 12 October 2005 in the name of John Maritim Koskei (deceased).
4. I am of the view that the plaintiffs have demonstrated that the property was vested in the 1st plaintiff by way of transmission and the 1st plaintiff transferred her interest to the 2nd plaintiff. The defendants have not given me any material showing that they have any entitlement to the suit property. They also had no right to forcefully move into the property and evict the 2nd plaintiff. If they felt that they had any grievance, the avenue ought to have been for them to file suit in a court of law, not to apply jungle law. I am satisfied that the plaintiffs have demonstrated a prima facie case with a probability of success.
5. I therefore order the defendants not to enter, be upon or in any other way interfere with the plaintiffs' possession of the suit property, pending hearing and determination of this suit. If they are in possession, I order that they vacate and stay away for the duration of this suit. I also issue an order of inhibition, inhibiting the registration of any disposition in the register of the suit property. Costs of the application will be costs in the cause.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 21ST day of October 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :
Mr. Njenga holding brief for Mr Orege of M/S Rodi Orege & Co advocates for plaintiffs/applicants.
N/A for M/s B. I Otieno & Co. advocates for defendants/respondents
CA: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU