[2015] KEELC 127 (KLR)
The court found that the plaintiff, as the wife of the registered owner, demonstrated a prima facie case for a beneficial interest in the suit land. The defendant did not contest the application or provide any justification for her occupation of the land. The plaintiff established that she and her children faced...
Source-derived case information.
- Citation
- [2015] KEELC 127 (KLR)
- Parties
- Plaintiff: Catherine Cherono Kapkomoi; Defendant: Raeli Tigirei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2015
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for injunction allowed.
- Judges
- MA Silau
- Legal Topics
- Injunctions, Beneficial Ownership, Trespass, Eviction, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Cherono Kapkomoi
Plaintiff
Raeli Tigirei
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of an injunction.
- 2 Whether the plaintiff stands to suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff, as the wife of the registered owner, demonstrated a prima facie case for a beneficial interest in the suit land. The defendant did not contest the application or provide any justification for her occupation of the land. The plaintiff established that she and her children faced threats and that the defendant had caused destruction to the property, including cutting down trees and damaging the fence. The court held that the plaintiff stood to suffer irreparable loss if the injunction was not granted. Applying the principles in Giella v Cassman Brown, the court concluded that the plaintiff was entitled to the interlocutory injunction sought, restraining...
Court Disposition
Application for injunction allowed.
Orders
- The defendant is ordered to stay away from the suit property until the final determination of this suit.
- Costs of the application shall be to the applicant.
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 46 OF 2015
CATHERINE CHERONO KAPKOMOI….………PLAINTIFF
VERSUS
RAELI TIGIREI……………………………………..DEFENDANT
RULING
(Application for injunction; plaintiff being wife of registered owner; defendant not opposing the application for injunction; prima facie case established; application for injunction allowed)
1. This suit was commenced by way of plaint filed on 20 February 2015. Together with the plaint, the plaintiff filed an application for injunction which is the subject of this ruling.
2. The case of the plaintiff is that she is the husband of one Joshua Kapkamoi who is the registered owner of the land parcel Nakuru/Teret/398, land measuring 2. 02 hectares which is approximately 5 acres. She has contended that her husband deserted the suit land about 10 years ago but left her and her children on the land. She has pleaded that about the year 2009, the defendant moved into the suit premises and has gradually taken about 3 acres thereof. She has stated that since her husband deserted, several people have been trespassing on the suit property including one Kiplangat Bii which led her to file suit against him. He has since vacated the land. The plaintiff has averred that the defendant's so has threatened them with violence and that they are now living in fear. She has also pleaded that the defendant has caused wastage on the land including cutting down more than 100 cypress trees and destroying the fence.
3. The prayers sought in the suit are for a declaration that the plaintiff is the lawful beneficial owner of the suit land; an eviction order against the defendant and a permanent injunction to restrain the defendant from the suit property.
4. The defendant has entered appearance but has not filed any other document to defend the suit or the application. Neither did her counsel appear at the hearing of the application. The only material before me is therefore that provided by the plaintiff.
5. The application before me is an application for injunction and I stand guided by the principles laid down in the case of Giella vs Cassman Brown (1973) EA 358. The Court of Appeal stated that to entitle one to an order of injunction, the applicant must demonstrate a prima facie case with a probability of success; demonstrate that he stands to suffer irreparable loss; and if the court is in doubt, it will decide the application on a balance of convenience.
6. I have assessed the material provided in this case. As I stated earlier, the facts as provided by the plaintiff have not been controverted by the defendant. The plaintiff has demonstrated the title deed to the property which is in the name of her husband. Prima facie, as wife, she does have a beneficial interest in the land. The defendant has not given any reason as to why she claims the land and why she is on it. Given this position, I am of the view that the plaintiff has demonstrated a prima facie case with a probability of success. She stands to suffer irreparable loss, especially given that the defendant is engaged in destruction of the property. I have no reason to deny the plaintiff the injunction sought.
7. I therefore allow the application. I order the defendant to stay away from the suit property until the final determination of this suit. Costs of this application shall be to the applicant.
8. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 8th day of October 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of : -
M/s Karen Wanderi for plaintiff/applicant: absent
Defendant: absent
Court Assistant : Janet
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU