[2013] KEELC 19 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit land, had demonstrated a prima facie case with a probability of success. The defendant had not responded to the application, and the evidence showed that the defendant had interfered with the plaintiff's possession by damaging the fence,...
Source-derived case information.
- Citation
- [2013] KEELC 19 (KLR)
- Parties
- Plaintiff: Boniface Odero Simani; Defendant: Herman Shibit
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 492 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application for injunction allowed
- Legal Topics
- Injunctive Relief, Trespass, Registered Land, Irreparable Harm
- 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
Boniface Odero Simani
Plaintiff
Herman Shibit
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the plaintiff stands to suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favors granting the injunction.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit land, had demonstrated a prima facie case with a probability of success. The defendant had not responded to the application, and the evidence showed that the defendant had interfered with the plaintiff's possession by damaging the fence, altering boundaries, and blocking access. The court held that continued interference would cause the plaintiff irreparable loss, and the balance of convenience favored maintaining the status quo by restraining the defendant. Accordingly, the court granted the interlocutory injunction restraining the defendant from further interference with the suit land pending the hearing and...
Court Disposition
application for injunction allowed
Orders
- The defendant and/or his servants/agents are restrained from any further interference with the suit land Eldoret Municipality Block 21 (Kingongo)/4698 pending the hearing and determination of this suit.
- Costs to be costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 492 OF 2013
BONIFACE ODERO SIMANI...........................................................PLAINTIFF
VS
HERMAN SHIBIT...........................................................................DEFENDANT
RULING
This is an application for injunction in which the plaintiff wishes to have the defendant restrained from interfering with the land parcel Eldoret Municipality Block 21 (Kingongo)/4698 (the suit land) pending the hearing and determination of this suit. The grounds upon which the application is founded are that the plaintiff is the registered owner of the suit land; that the defendant has interfered with the said property by inter alia damaging the perimeter fence, altering the beacons, and blocking access by the plaintiff; and that unless restrained , the defendant will continue so interfering which will cause the plaintiff irreparable loss.
The defendant despite being served with the suit papers and the application, has neither filed appearance nor a response to the application.
This suit was instituted by way of plaint in which the plaintiff has pleaded that on or about 28th April 2009, the defendant sold to him the suit land and a transfer effected to him. He has averred that he has been in occupation since and has developed a private school and a church. However, in June 2012, the defendant trespassed into the land, destroyed the gate, altered the boundaries and constructed temporary structures, thus interfering with his occupation. The main prayer in the plaint is for a permanent injunction to restrain the defendant from further interference with the suit land.
I have considered the application. As I stated earlier, the defendant has not filed any response to the application. To the supporting affidavit, the plaintiff annexed a copy of the title to the suit land which shows that the plaintiff is the registered owner, having become registered on 14th June 2012. I think the plaintiff has demonstrated a prima facie case with a probability of success. There is also no question that if the defendant is to continue interfering with the suit land, the plaintiff stands to suffer irreparable loss. Moreover, the balance of convenience tilts towards having the property in the hands of the plaintiff, as registered proprietor, pending hearing and determination of the suit. If the defendant has any legitimate claim over the suit land, then he is free to lodge the same for consideration. But pending the hearing of the matter, he ought to keep off the suit land.
In the premises, I allow the application for injunction and restrain the defendant and/or his servants/agents from any further interference with the suit land pending the hearing and determination of this suit. Costs to be costs in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF NOVEMBER 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Mr. G. Cheruiyot for the plaintiff.
N/A for defendant.