[2022] KEELC 1352 (KLR)
The court found that the respondent had taken possession of the suit property years ago, as admitted by the applicants. Granting an injunction in these circumstances would only complicate the dispute, especially since the matter is already set for hearing on the merits. The court exercised its discretion to decline...
Source-derived case information.
- Citation
- [2022] KEELC 1352 (KLR)
- Parties
- Plaintiff: Catherine Aluvisia Ochoki; Defendant: Roselyn Dola Ouko; Defendant: Aaron Tafari Ouko; Defendant: David Scott Ouko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 413 of 2021
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to plaintiff/respondent
- Judges
- LN Mbugua
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Adverse Possession, Sale of Land, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Aluvisia Ochoki
Plaintiff
Roselyn Dola Ouko
Defendant
Aaron Tafari Ouko
Defendant
David Scott Ouko
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the respondent from interfering with the suit land pending hearing and determination of the application.
- 2 Whether the respondent is lawfully in occupation of the suit land and whether consent from the applicants was required.
- 3 Whether the balance of convenience and interests of justice favour the grant of an injunction.
Ratio Decidendi
The court found that the respondent had taken possession of the suit property years ago, as admitted by the applicants. Granting an injunction in these circumstances would only complicate the dispute, especially since the matter is already set for hearing on the merits. The court exercised its discretion to decline the injunction, holding that the applicants had not established a sufficient basis for the interlocutory relief sought. The balance of convenience did not favour disturbing the status quo, and the parties would have the opportunity to fully ventilate their claims at trial.
Court Disposition
application dismissed with costs to plaintiff/respondent
Orders
- The application dated 23.8.2021 is dismissed.
- Costs awarded to the Plaintiff/Respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 413 of 2018
CATHERINE ALUVISIA OCHOKI .........................................PLAINTIFF/RESPONDENT
VERSUS
ROSELYN DOLA OUKO .....................................................1ST DEFENDANT/APPLICANT
AARON TAFARI OUKO ......................................................2ND DEFENDANT/APPLICANT
DAVID SCOTT OUKO ........................................................3RD DEFENDANT/APPLICANT
RULING
1. Before me is a notice of motion application dated 23. 8.2021 in which the Defendants are seeking the following orders:
1. spent
2. That pending the hearing and determination of this application the Respondent, its agents, servants, proxies and or any other person claiming through him be restrained by an order of injunction from interfering, working, developing erecting on and/or developing the suit land in dispute measuring 5 acres or thereabouts situated on the property known as LR. No. 3589/6
3. That upon prayer (2) above being granted the interim order be deem to remain in force until the hearing and determination of this application
4. That the costs of this application be provided for.
2. The Applicants contend they are the administrators of the estate of their late father JASON ATINDA OUKO who is the registered owner of Parcel 3589/6, but the Respondent has been working on the suit parcel without their consent which actions are unlawful and unjust.
3. Vide the supporting affidavit of one AARON TAFARI OUKO (2nd Defendant) the Applicants contend that their father had entered into a land sale agreement with one James Ochoki Ondima on 10. 3.1978 where 5 acres out of the suit parcel was to be sold, of which the buyer was allowed to take possession after paying part of the purchase price of Kshs 90,000 but the purchaser did not honour the balance.
4. In the replying affidavit of the Respondent dated 19. 10. 2021, it is averred that the Respondent/Plaintiff’s husband purchased the suit property from Jason Atinda Ouko as confirmed under paragraph 5 of the supporting affidavit of which the purchase price was fully paid.
5. That the Respondent proceed to develop the 5 acres and has been in occupation of the suit land, thus she did not require consent to occupy the land from the Applicant. The Respondent seeks the dismissal of the suit.
6. I have considered the issues raised herein, in particular, it emerges from paragraph 6 of the affidavit of AARON TAFARI OUKO that the Respondent took possession of the suit property years ago. An order of injunction in such a scenario would only convolute the dispute further.
7. It is not lost to this court that directions were duly taken on25. 1.2021 and the matter is scheduled for hearing in the next term on (16. 5.2022)
8. An injunction is a discretionary remedy and in this case, I exercise my discretion in not granting any orders as parties will soon have a chance of ventilating their case during the main trial.
9. The application is dismissed with costs to Plaintiff/Respondent.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF FEBRUARY, 2022 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
IN THE PRESENCE OF:-
ONYANGO FOR THE APPLICANT
MAINA FOR THE RESPONDENT
COURT ASSISTANT: EDDEL BARASA