[2017] KEELC 3572 (KLR)
The court found that the applicants, although registered owners, failed to demonstrate that they would suffer irreparable harm if the injunction was not granted, nor did they show that the suit would be rendered nugatory. The pleadings revealed that the respondents were in occupation of the land and had longstanding...
Source-derived case information.
- Citation
- [2017] KEELC 3572 (KLR)
- Parties
- Applicant: Katana Chembe Karisa; Applicant: Chengo Chembe; Applicant: Charo Chembe Karisa; Applicant: Chembe Karisa (suing as administrator of Chembe Karisa, deceased); Respondent: David George Mdachi & 44 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Land Case 296 of 2014
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the plaintiffs/respondents
- Legal Topics
- Injunctive Relief, Trespass, Ownership Dispute, Title Challenge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katana Chembe Karisa
Applicant
Chengo Chembe
Applicant
Charo Chembe Karisa
Applicant
Chembe Karisa (suing as administrator of Chembe Karisa, deceased)
Applicant
David George Mdachi & 44 Others
Respondent
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the respondents from cultivating or trespassing on parcel Kaloleni/Chalani/698 pending determination of the suit.
- 2 Whether the applicants have demonstrated irreparable harm or risk of the suit being rendered nugatory if the injunction is not granted.
- 3 Whether the balance of convenience favours the applicants or the respondents.
Ratio Decidendi
The court found that the applicants, although registered owners, failed to demonstrate that they would suffer irreparable harm if the injunction was not granted, nor did they show that the suit would be rendered nugatory. The pleadings revealed that the respondents were in occupation of the land and had longstanding homesteads and cultivation thereon. The applicants did not specify when the alleged acts of trespass began or whether they predated the suit. The court held that the balance of convenience favoured allowing the respondents to remain in occupation pending determination of the suit, especially as they challenged the applicants' title. The application for an interlocutory...
Court Disposition
application dismissed with costs to the plaintiffs/respondents
Orders
- The application dated 19th May 2015 is dismissed.
- Costs of the application are awarded to the plaintiffs/respondents.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EVINRONMENT AND LAND COURT
AT MOMBASA
LAND CASE NO.296 OF 2014
DAVID GEORGE MDACHI & 44 OTHERS...................REPONDENTS
-VERSUS-
(1) KATANA CHEMBE KARISA
(2) CHENGO CHEMBE
(3) CHARO CHEMBE KARISA
(4) CHEMBE KARISA (All sued on their own behalfand also
beneficiariesand administrators of the estate of
CHEMBE KARISA (DECEASED)......................................APPLICANTS
RULING
1. The defendants have moved this court vide their notice of motion dated 19th May 2015. The application is brought under the provision of order 40 of the Civil Procedure Rules and Section 1A, 1B & 3A of the Civil Procedure Act. In the applicants sees the following orders;
1. Spent
2. Spent
3. That the Plaintiffs by themselves, their agents or employees or anybody claiming through their be restrained from ploughing and/or cultivating and/or trespassing or do any activity on the applicants parcel of land title no.Kaloleni/Chalani/698 pending hearing and determination of this suit.
4. That the OCS Kaloleni Police Station to be ordered to supervise and/or implement to these orders.
5. That the cost of this application be awarded to the applicants.
2. The application is founded on the grounds on the face of it and the affidavit of Charo Chembe Karisa. In the affidavit, Mr. Charo says they are the bonafide owners of the said land having inherited the same from their father in 1963. He deposed that the plaintiffs had a maize meal in the adjacent parcel of land where they built houses and have been staying on at material times.
3. That the plaintiffs have mistaken their boundaries and trespassed into their parcel of land whereby they are now ploughing and cultivating on the same. They warned the plaintiffs but to no avail. Further that they have invested their money, time and effort on the said parcel and unless Respondents are restrained, they are bound to suffer immense loss and damage. He prayed for the orders to be granted.
4. The application is opposed by the plaintiffs vide an affidavit sworn by the 1st plaintiff George Benjamin Mdachi. In the replying affidavit, it is deposed that the plaintiffs have homesteads on the suit land and they have been cultivating the same from the time of their grandfathers. Mr. Mdachi deposed that the defendants are not on the parcel of land neither do they have any structures on it. That if the orders are allowed, it is the plaintiffs who stand to suffer irreparable loss as they will be denied access to their homesteads. He urged the court to dismiss the application.
5. The advocates for the parties filed brief written submissions which I have read and considered while reading my decision. The defendant submitted that the orders cannot be granted because there is no prayer made in the defence. To support this submission, they quoted the case of Nairobi City Council as Thabiti Enterprises limited (1995 – 98) 2 EA 231 where it was held that
“there was an error apparent on the face of the record in that there was a glaring inconsistency in the decree ordering the appellant to pay the Respondent the value of the suit land when this was not claimed.”
6. The applicants submitted on the case of Griella vs Cassman Brown saying that the plaintiffs ought not to put permanent structures therein yet they have embarked on cultivation without prior consent of the defendants/applicants. The defendants have used a past tense by submitting that the plaintiffs have deliberately “trespassed” and are busy cultivating the land. That because the defendants have a title deed, their chances of succeeding is high.
7. As pointed out by the plaintiffs the defendants have not counter-claimed against the plaintiffs. The plaintiffs deponed that they have been on the land for a long time. The defendants have not specified whether the acts of trespass complained of began before the filing of the suit or not.
8. The purpose of order 40 rule 1 is preserve the property the subject of the suit from being damaged during the pendency of a suit so that the decree is not frustrated. The defendants herein have not pleaded that if the orders are not granted this suit will be rendered nugatory. Further they did not elaborate on the nature of the loss that they will suffer which cannot be compensated by an award of damages.
9. The defendants came filed this application merely because they are the registered owners. However the pleadings reveal the plaintiffs are in occupation. Since the plaintiffs are challenging the title of the defendants, the balance of convenience dictates that the plaintiffs be allowed to continue using the land until the suit is determined.
10. In conclusion, I find the application to be without merit and hereby dismiss it with costs to the plaintiffs.
Dated and Delivered at Mombasa this 20th day of January 2017.
A.OMOLLO
JUDGE