[2005] KEHC 1471 (KLR)
The court found that the applicant had established a prima facie case for the grant of an interim injunction, as the acts of the defendants were supported by evidence from the land adjudication officials and appeared intended to delay the adjudication process. The court determined that the suit property was in...
Source-derived case information.
- Citation
- [2005] KEHC 1471 (KLR)
- Parties
- Plaintiff: Benjamin Mutuku Kaleli; Defendant: Bomu Headlam (Sued as the Adm. of Estate of Headlam S. Mnene (Deceased) And On His Own Behalf); Defendant: Isaac Reny S. Mrutu; Defendant: Remes Mrutu; Defendant: Naomi Mrutu; Defendant: Shaban Kitegi Metiaki; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 233 of 2004
- Procedural Posture
- Civil Suit / Interlocutory Application (chamber Summons) for Interim Injunction
- Outcome
- Interim injunction granted in part; costs awarded to applicant against first five defendants.
- Legal Topics
- Interlocutory Injunctions, Land Adjudication Disputes, Trespass to Land, Irreparable Harm, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Mutuku Kaleli
Plaintiff
Bomu Headlam (Sued as the Adm. of Estate of Headlam S. Mnene (Deceased) And On His Own Behalf)
Defendant
Isaac Reny S. Mrutu
Defendant
Remes Mrutu
Defendant
Naomi Mrutu
Defendant
Shaban Kitegi Metiaki
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (chamber Summons) for Interim Injunction
Legal Issues
- 1 Whether the applicant is entitled to interim injunctive relief restraining the defendants from trespassing or developing the suit property pending trial.
- 2 Whether the applicant has established a prima facie case with a likelihood of success.
- 3 Whether damages would be an adequate remedy for the harm alleged by the applicant.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of an interim injunction, as the acts of the defendants were supported by evidence from the land adjudication officials and appeared intended to delay the adjudication process. The court determined that the suit property was in danger of permanent degradation, which could not be adequately compensated by damages, thus satisfying the requirement of irreparable harm. The technical objections raised by the defendants regarding limitation and compliance with the Land Adjudication Act were found to be unsubstantiated at this stage and would be determined at trial. Consequently, the court granted the interim...
Court Disposition
Interim injunction granted in part; costs awarded to applicant against first five defendants.
Orders
- The first five defendants are restrained from trespassing, developing, mowing, cultivating, harvesting, or fencing upon Plot No. 501 at Kimala Mata adjudication section pending hearing of the suit.
- The order to command the Attorney General to assess damages is declined at this stage.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 233 of 2004
BENJAMIN MUTUKU KALELI …………………………………………PLAINTIFF VERSUS 1. BOMU HEADLAM (Sued as the Adm. of Estate of HEADLAM S. MNENE (Deceased) And On His Own Behalf) 2. ISAAC RENY S. MRUTU 3. REMES MRUTU 4. NAOMI MRUTU 5. SHABAN KITEGI METIAKI 6. THE ATTORNEY GENERAL……………………..…………….DEFENDANTS
R U L I N G
By Chamber summons dated the 25/5/2005 the applicant seeks orders to restrain 1st ,2nd ,3rd ,4th and 5th from trespassing or in any way developing mowing cultivating or harvesting or fencing upon the said Plot No. 501 at Kimala Mata adjudication section pending hearing of this suit. Also applicant seeks order to command the Attorney General to move unto the said plot and assess the damages caused by the 5 other defendants.
The applicant has already obtained consent from the Land Adjudication office to file this suit. See exhibit “BMK1”.
In supporting affidavit the applicant states that the defendants started trespassing on his land in 2001. The land adjudication has been unable to sort out the dispute saying it is of intricate nature and there is animosity between the parties. The applicant has annexed documents as exhibits to support his story.
All defendants have filed replying affidavits, which I have perused. It is clear the allegations of the applicant are supported by the officials of land adjudication department. In fact it is clear the acts of the defendants are aimed at delaying orderly land adjudication process in regard to Applicants plot. The 5 first defendants rely on technicalities aimed at obstructing the process. Upon examining the material before the court, I am satisfied that the applicant has shown a prima facie case and is entitled to interim orders under prayer (2). The allegations that suit is time barred or is not brought in compliance with Adjudication Act are just allegations subject to proof at the trial.
They are not substantiated by the first 5 defendants and these defendants denial is not with substance.
However, I decline to grant orders sought under prayer 3 leaving the same to be dealt with after evidence after trial.
It is clear the suit property is in danger of permanent degradation and this kind of damage cannot be compensated in damages.
The application is allowed to that extent. The costs of this cause are awarded to the applicant against the first five respondents/defendants.
In view of the fact that this dispute has lasted for so long. I direct the parties to comply with discovery and framing issues so as to bring this suit to trial within the next 6 months from today.
Delivered and dated at Mombasa this 16th day of September 2005.
J. KHAMINWA
J U D G E