[2013] KEHC 3272 (KLR)
The court found that the applicant's claim that he only intended to sell three acres to the respondent was untrue, as evidence showed the respondent had purchased and fully paid for 5.3 acres and was in possession of the land. Granting the injunction would have the effect of evicting the respondent from land he...
Source-derived case information.
- Citation
- [2013] KEHC 3272 (KLR)
- Parties
- Plaintiff: David Karani Luseno; Defendant: Robert Kidaha Mukagati
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 82 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent; interim orders discharged
- Judges
- EO Obaga
- Legal Topics
- Interlocutory Injunctions, Land Sale Agreements, Possession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Karani Luseno
Plaintiff
Robert Kidaha Mukagati
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from interfering with three acres of the suit land pending hearing of the application.
- 2 Whether the respondent is in lawful possession of the disputed land based on a sale agreement.
Ratio Decidendi
The court found that the applicant's claim that he only intended to sell three acres to the respondent was untrue, as evidence showed the respondent had purchased and fully paid for 5.3 acres and was in possession of the land. Granting the injunction would have the effect of evicting the respondent from land he lawfully occupies. The initial ex parte injunction was granted on insufficient and misleading material. The application was therefore dismissed for lack of merit and for material non-disclosure, and the interim orders were discharged.
Court Disposition
application dismissed with costs to the respondent; interim orders discharged
Orders
- The application for temporary injunction is dismissed with costs to the respondent.
- The interim orders granted on 18/04/2013 are hereby discharged.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Kitale
Civil Suit 82 of 2012 [if gte mso 9]><xml>
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DAVID KARANI LUSENO ...........................................….... PLAINTIFF
VERSUS
ROBERT KIDAHA MUKAGATI ....................................... DEFENDANT
R U L I N G
The Applicant through Notice of Motion dated 17/04/2013 sought an order for temporary injunction restraining the Respondent, his servants and or agents from trespassing upon, ploughing, planting or in any way interfering with three (3) acres on Land Parcel No. 191, Kapkoi Settlement Scheme pending hearing of the application inter-partes. The Applicant was granted a temporary injunction ex-parte on 18/04/2013. The application came up for hearing inter-partes on 02/05/2013. The Applicant had deponed in the Supporting Affidavit that he had intended to sell three acres to the Defendant but that the Defendant breached the agreement and that the Defendant had started damaging the property on the land and demolished his house where his servant used to reside. The Applicant had also contended that he had leased three acres out of the suit land to one Saphan Okongo Oriedo who had ploughed ready for planting but that the Defendant/Respondent went ahead to plant on the ploughed land.
The application was opposed by the Respondent through Replying Affidavit sworn on 30th April, 2013 where the Respondent contends that he bought 5. 3 acres from the Applicant in 2000 and has fully paid for the land which he is occupying. He contends that if the application is allowed, it will amount to evicting him and putting into occupation one Saphan Okongo Oriedo.
I have gone through the application as well as the Replying Affidavit and the submissions by the Counsel for the parties. The interlocutory injunction was granted on insufficient material information. After the inter-partes hearing, it has emerged that the Respondent bought 5. 3 acres from the Plaintiff/Applicant and that he has fully paid for the 5. 3 acres. The Applicant's claim that he had intended to sell three acres to the Respondent who failed to pay the agreed sum is therefore not true. It also emerged during the hearing that the Respondent is the one in possession of the land and as such granting the injunction prayed for will amount to evicting the Respondent from the land he is occupying and utilizing. I find that the orders sought were given based on material non disclosure of the facts as they are on the ground. I find that he application cannot stand. I dismiss the same with costs to the Respondent. The interim orders given herein on 18/04/2013 are hereby discharged.
It is so ordered.
Dated, signed and delivered in Open Court on this 21st day of May, 2013.
E. OBAGA
JUDGE
In the presence of Mr. Kiarie for the Defendant.
Court Clerk: Joan.
E. OBAGA
JUDGE
21/05/2013
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