[2014] KEHC 6965 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the land in question (Plot Q) was not registered in anyone's name and its ownership would require evidence at trial. Furthermore, the plaintiff did not demonstrate that he would suffer irreparable injury...
Source-derived case information.
- Citation
- [2014] KEHC 6965 (KLR)
- Parties
- Plaintiff: Chaka Nyamakii; Defendant: Kondo Mwero Matso; Defendant: Zawadi Kondo Mwero
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 248 of 2012
- Procedural Posture
- Civil Case / Ruling on Interim Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Interim Injunctions, Trust Land, Community Land Rights, Irreparable Injury, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chaka Nyamakii
Plaintiff
Kondo Mwero Matso
Defendant
Zawadi Kondo Mwero
Defendant
Procedural Posture
Civil Case / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant the grant of an interim injunction.
- 2 Whether the plaintiff will suffer irreparable injury not capable of being remedied by damages if the injunction is not granted.
- 3 Whether the land in question is community (trust) land and if the plaintiff has any enforceable rights over it.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the land in question (Plot Q) was not registered in anyone's name and its ownership would require evidence at trial. Furthermore, the plaintiff did not demonstrate that he would suffer irreparable injury incapable of being remedied by damages if the injunction was not granted. The court was not convinced that any case had been made out for an injunction, and therefore dismissed the application with costs to the defendants.
Court Disposition
application dismissed with costs
Orders
- The application for interim injunction is dismissed.
- The plaintiff shall pay the costs of the application to the defendants.
Full Case Text
Judgment text and source record
23 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 248 OF 2012
CHAKA NYAMAKII.............................................PLAINTIFF
- V E R S U S -
1. KONDO MWERO MATSO
2. ZAWADI KONDO MWERO ........................ DEFENDANTS
RULING
[1] The Applicant by a notice of motion dated 2nd November 2012 filed an application for an interim injunction restraining the defendants,their employees, servants and/or agents from entering into, cultivating or committing acts of waste or dealing in any manner with the plaintiff's quiet and peaceful enjoyment of land known as sub-plot Q measuring 0. 45 ha at Samburu Trading Centre.
[2] The application was opposed by the defendants who argued that the entire Samburu area consists of community land which is Trust Land. The defendant argued that no individual has the capacity or right to alienate, dispose off, sell or adversely deal with any portion of community land without the consent of clan elders. They denied that the plaintiff has ever constructed a wall or placed beacons over the suit land and averred the land belongs to Samburu South/Makamini Group Ranch.
[3] For an injunction to be granted the court must be satisfied that the plaintiff has a prima faciecase with a probability of success. It is admitted that Plot Q is not registered in any ones name, Its ownership would have to be established by evidence at the hearing hereof.
[4] The other cardinal rule of injunction is that they will normally not be granted unless the applicant can show that he will suffer irreparable injury that will not be capable of being remedied by damages. This has not been established before me at all. Looking at this application on the whole and having perused the documents annexed therein. I am not convinced that any case has been made out for an injunction.
I dismiss the appeal with costs.
Dated and delivered at Mombasa in open court on the 14th day of
February, 2014.
S.MUKUNYA
JUDGE
14. 2.2014
In the presence of:
Odiaga Advocate for applicant
Mutubia Advocate for 1st and 2nd Respondent.