[2013] KEHC 1656 (KLR)
The court found that the applicant had demonstrated ownership of the suit property, a fact not disputed by the respondents. The applicant provided evidence of ongoing construction by the respondents, while the respondents failed to provide evidence of long-term occupation. The court held that the purpose of an...
Source-derived case information.
- Citation
- [2013] KEHC 1656 (KLR)
- Parties
- Plaintiff: Chesterton Properties Limited; Defendant: Anastacia Musili & 17 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2013
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application for interlocutory injunction allowed.
- Judges
- SN Mukunya
- Legal Topics
- Interlocutory Injunctions, Trespass to Land, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chesterton Properties Limited
Plaintiff
Anastacia Musili & 17 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the defendants from constructing or developing structures on plot no. 7/V/MN pending determination of the suit.
- 2 Whether the applicant has demonstrated a prima facie case with a probability of success.
- 3 Whether the balance of convenience favours the grant of an injunction.
Ratio Decidendi
The court found that the applicant had demonstrated ownership of the suit property, a fact not disputed by the respondents. The applicant provided evidence of ongoing construction by the respondents, while the respondents failed to provide evidence of long-term occupation. The court held that the purpose of an injunction is to preserve the status quo, and that allowing construction to continue would prejudice the applicant's proprietary rights. The balance of convenience favoured the applicant, and the court granted the temporary injunction to restrain the defendants from further construction or development on the suit property pending the hearing and determination of the suit.
Court Disposition
Application for interlocutory injunction allowed.
Orders
- The defendants, their servants and/or agents are restrained temporarily from erecting buildings, constructing, or developing any structure on plot no. 7/V/MN pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 65 Of 2013
CHESTERTON PROPERTIES LIMITED. …........................................ PLAINTIFF
V E R S U S
ANASTACIA MUSILI & 17 OTHERS …..........................................DEFENDANTS
RULING
[1] The applicant filed this notice of motion and prayed for orders that the defendants by themselves, their servants and/or agents be restrained temporarily from erecting building, constructing, developing any structure on plot no. 7/V/MN pending the inter parte hearing and determination of this suit.
The applicant avers that it is the registered proprietor of the suit property. That the defendants are squatters and are attempting to build a school and that their activities have neither been sanctioned by the plaintiff nor the Mombasa Municipal Council.
The Managing Director of the plaintiff company annexed the registration certificate and the document of title of the suit property in the name of the applicant. It also annexed photographs showing the temporary structures being built by the respondents.
[2] The respondents in their replying affidavit admitted Title Deed CR 1533/1 is in the name of the applicant/plaintiff. The defendants argued that the photographs attached were not taken on the suit property. They argued that the issue of trespass on plot no. 7/V/MN is the subject of judicial review proceedings in High Court Civil case No. 226 of 2010. They stated that some respondents have been on the land for a period of over 12 years and that the issue of trespass does not arise.
[3] I have perused the submissions of the applicants and the respondents. The applicants have demonstrated that they are registered owners of the suit premises. This fact has not been disputed by the respondents. They have annexed photographs showing the structures under construction by the respondents. They state on oath that they have reported this trespass several times to the police. The respondents state that the photographs were not taken on the suit land. They have not annexed their own photographs to show long occupation of the suit land at all. One would have expected people with occupation for a period alleged to be over 12 years to at least show some evidence of such occupation. From the photographs annexed by the applicants one can see an attempt to construct structures by the respondents.
[4] The purpose of an injunction is the need to protect and preserve the status quo existing at the time of the application. This status quo can only best be protected by an injunction pending the hearing of the suit. The balance of convenience clearly favours the applicant. If the state of construction is allowed to continue and public structures like schools are build on private land when the suit is pending in Court the plaintiff/applicant who is the registered owner will loose greatly. It is important that an injunction do issue pending the hearing of the suit on merits.
The application dated 18th April 2013 is allowed as prayed.
Dated and delivered in open Court at Mombasa this 18th day of October, 2013.
S. N. MUKUNYA
JUDGE
18. 10. 2013
In the presence of:
Umalla Advocate for the plaintiff
Ombonge Advocate for the defendants