[2017] KEELC 3737 (KLR)
The court found that the applicant failed to provide evidence of the existence or purchase of land parcel No. 347 Trans Nzoia District, which was the subject of the injunction application. There was no documentation to support the claim of ownership or the existence of the property, and no plaint was on record. As a...
Source-derived case information.
- Citation
- [2017] KEELC 3737 (KLR)
- Parties
- Plaintiff: Daniel Omwahaka Oyombe; Defendant: Nathan Kiprono Mutai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Land Case 184 of 2016
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Injunctive Relief, Prima Facie Case, Land Sale Agreements, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Omwahaka Oyombe
Plaintiff
Nathan Kiprono Mutai
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of an interim injunction restraining the defendant from interfering with land parcel No. 347 Trans Nzoia District.
- 2 Whether there is sufficient evidence of the existence and purchase of land parcel No. 347 Trans Nzoia District.
Ratio Decidendi
The court found that the applicant failed to provide evidence of the existence or purchase of land parcel No. 347 Trans Nzoia District, which was the subject of the injunction application. There was no documentation to support the claim of ownership or the existence of the property, and no plaint was on record. As a result, the applicant failed to establish a prima facie case as required for the grant of an interlocutory injunction. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 20th September 2016 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT OF KENYA AT KAKAMEGA
LAND CASE NO. 184 OF 2016
DANIEL OMWAHAKA OYOMBE...............PLAINTIFF / APPLICANT
VERSUS
NATHAN KIPRONO MUTAI.................DEFENDANT/ RESPONDENT
RULING
The application is dated 20th September 2016 and is brought by way of Notice of Motion under order 40 Rule 1, 2, 4 of the Civil Procedure Rules and Section 3, 3A and 63(C) of the Civil Procedure Act. The Applicant seeks the following orders;
1. That this application be certified as urgent and its service be dispensed with in the first instance.
2. That the Honourable Court be pleased to issue an interim injunction against the defendant their agents, servants and or employees from transferring and or otherwise interfering in whatsoever way with the Plaintiffs property land parcel No. 347 Trans Nzoa District pending the hearing and determination of this application.
3. That the Honourable Court be pleased to issue an order restraining the defendant whether by themselves, agents, servants and or employees from trespassing, advertising for sale, selling, transferring, charge or dealing in whatsoever manner with the property known as parcel No. 347 Trans Nzoa District.
4. That there be such other and or further orders as the Honourable Court may deem as expedient in the circumstances to grant.
5. That the cost of this application be provided for.
The Plaintiff/ Applicant submitted that the plaintiff entered into an agreement with the Defendant sometime in 2004 to purchase land parcel number 382 Trans Nzoia District measuring 1 acre at a price of Kshs. 115,000/=. He paid in full but the defendant failed to deliver possession.
On or about 31st October 2016 the Plaintiff entered into another agreement with the Defendant to replace the first parcel with land parcel number 347 – Zea Settlement Scheme measuring 1 acre at the price Kshs. 115,000/=. However the Defendant has still not delivered vacant possession.
The Court has perused the application and supporting affidavit of the Plaintiff together with the annextures. The Defendant was served but failed to attend court or file any opposition. It is the plaintiff’s contention that he first bought land parcel number 382 Trans Nzoia District and then replaced it with land parcel number 347 – Zea Settlement Scheme. The documents annexed to the application state the same. There is no evidence of purchase of land parcel No. 347 Trans Nzoa District as prayed for in the application and no evidence of its existence. There is also no plaint on record. Be that as it may, prayer 2 of the application has been spent and prayer 3 cannot be granted for the above reasons. The Applicant has failed to establish a prima facie case. This application has no merit and is hereby dismissed.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 28TH FEBRUARY 2017.
N.A. MATHEKA
JUDGE