[2018] KEELC 3470 (KLR)
The court found that the plaintiff had established a prima facie case by producing title documents showing ownership of the suit properties. The defendant failed to respond or provide any justification for his actions or claim to the land. The court was satisfied that the plaintiff was entitled to protection of his...
Source-derived case information.
- Citation
- [2018] KEELC 3470 (KLR)
- Parties
- Plaintiff: Cheruiyot Henry Kiptanui; Defendant: James Koske
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2018
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in favour of the plaintiff; mandatory injunction for return of signposts declined at this stage; costs awarded to plaintiff.
- Legal Topics
- Ownership Disputes, Injunctive Relief, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cheruiyot Henry Kiptanui
Plaintiff
James Koske
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction against the defendant.
- 2 Whether the plaintiff is entitled to an order restraining the defendant from interfering with the suit properties pending determination of the suit.
- 3 Whether a mandatory injunction for return of signposts should be granted at the interlocutory stage.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by producing title documents showing ownership of the suit properties. The defendant failed to respond or provide any justification for his actions or claim to the land. The court was satisfied that the plaintiff was entitled to protection of his proprietary rights through an interlocutory injunction restraining the defendant from interfering with the properties. However, the court declined to grant a mandatory injunction for the return of signposts at this stage, noting that damages could be claimed or the issue revisited at trial, as the whereabouts of the signposts were unknown. The balance of convenience favoured...
Court Disposition
interlocutory injunction granted in favour of the plaintiff; mandatory injunction for return of signposts declined at this stage; costs awarded to plaintiff.
Orders
- Pending hearing and conclusion of the suit, an injunction is issued restraining the defendant from entering, being upon, or interfering with the plaintiff's use, possession, or construction on Nakuru Municipality Block 17/649 and 650.
- The plaintiff is permitted to continue construction work on the suit properties.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 11 OF 2018
CHERUIYOT HENRY KIPTANUI...........................PLAINTIFF
VERSUS
JAMES KOSKE.......................................................DEFENDANT
RULING
(Application for injunction; plaintiff being owner of suit land and defendant interfering with it; no response by defendant to explain his actions; application allowed).
1. This suit was filed by way of plaint on 22 January 2018. In the suit, the plaintiff has contended that he is the owner of the land parcels Nakuru Municipality Block 17/649 and 650, having purchased the two properties from their previous owners in the year 2012. It is pleaded that the plaintiff thereafter embarked on constructing a boundary wall, but on 18 January 2018, the defendant came to the suit properties and chased away the construction workers while brandishing a gun and carted away some signposts. In the suit, the plaintiff seeks a declaration that he is the legitimate owner of the suit properties, an order of permanent injunction against the defendant, and an order of mandatory injunction for the defendant to return the signposts that he carted away.
2. Together with the plaint, the plaintiff filed an application for an interlocutory injunction, seeking to restrain the defendant from developing, selling, alienating, entering and/or interfering in any way with the suit properties until this suit is concluded. He has also sought orders of mandatory injunction for the defendant to return the signposts. To his supporting affidavit, the plaintiff has inter alia annexed copies of title to the two suit properties.
3. Despite being duly served, the defendant did not file anything to oppose the application. The only material that I have is therefore that tendered by the plaintiff.
4. I have gone through the same. I have seen that the plaintiff appears to be the title holder to the two suit properties. I therefore am persuaded, prima facie, that the plaintiff is the legal owner of the suit properties. The defendant has not given any document or given any reason as to why the plaintiff cannot continue to work on the suit land and has not persuaded me to stop the plaintiff from working on the land. The plaintiff is thus deserving of an order of injunction. On the order to return the signposts, the plaintiff can as well claim damages, and do fresh signposts. I do not know the whereabouts of these signages and I do not wish to make an order for return in the event that the same are not available. The plaintiff can pursue the same at the hearing of the suit or claim damages in the alternative.
5. From the above discourse, I make the following orders:
(i) That pending hearing and conclusion of this suit, an order of injunction is hereby issued stopping the defendant from entering, being upon, or in any other way interfering with any construction or use and possession by the plaintiff of the land parcels Nakuru Municipality Block 17/649 and 650.
(ii) That the plaintiff is free to continue with construction work within the land parcels Nakuru Municipality Block 17/649 and 650.
(iii) That the plaintiff shall have the costs of this application.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 12th day of April 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of :-
Ms. Moenga present holding brief for Mr. Akang’o for the plaintiff/applicant.
No appearance on the part of M/s Cherutich & Co. for defendant/respondent.
Court assistant: Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU