[2006] KEHC 3207 (KLR)
The court found that the applicant had established a prima facie case with a probability of success based on the agreement for sale and uncontroverted possession of the subject land. The court further held that damages may not be an adequate remedy given the applicant's long occupation and developments on the land....
Source-derived case information.
- Citation
- [2006] KEHC 3207 (KLR)
- Parties
- Plaintiff: David Muturi Migwi; Defendant: Sally Jemeli Korir; Defendant: Judith C. Korir
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2006
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- interlocutory injunction granted in favor of the applicant; costs in the cause
- Legal Topics
- Adverse Possession, Interlocutory Injunctions, Estate Administration, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muturi Migwi
Plaintiff
Sally Jemeli Korir
Defendant
Judith C. Korir
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of an interlocutory injunction.
- 2 Whether the applicant will suffer irreparable injury not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favors the applicant.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success based on the agreement for sale and uncontroverted possession of the subject land. The court further held that damages may not be an adequate remedy given the applicant's long occupation and developments on the land. Even if there was doubt, the balance of convenience favored the applicant, who stood to suffer greater harm if the injunction was not granted. Consequently, the court exercised its discretion to grant the interlocutory injunction restraining the respondents from interfering with the applicant's possession pending determination of the suit.
Court Disposition
interlocutory injunction granted in favor of the applicant; costs in the cause
Orders
- The respondents are restrained from alienating, transferring, interfering with, or in any other way dealing with the applicant's four acres of land known as UASIN GISHU/ILLULA SETTLEMENT SCHEME/567/90 pending the hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Case 14 of 2006 (OS)
DAVID MUTURI MIGWI ….........………………………… PLAINTIFF
VERSUS
SALLY JEMELI KORIR ……………………………… 1ST DEFENDANT
JUDITH C. KORIR …………………………………… 2ND DEFENDANT
R U L I N G
David Muturi Migwi, who is the applicant herein seeks an order to restrain Sally Jemeli Korir and Judith Korir from alienating, transferring, interfering with or in any other way dealing with his four acres of land, known as UASIN GISHU/ILLULA SETTLEMENT SCHEME/567/90 (“subject property”) pending the hearing and determination of his suit against the two.
He bases his application on the grounds that he acquired the subject property in 1986 from Yusuf Chepkeitany Korir, who was its original allottee and who is now deceased. It is also his ground that he has been in occupation of the land since the said acquisition, and he therefore avers that though he has a right to the said land by way of adverse possession, both Jemeli and Judith who have now obtained Letters to administer the Estate of the late Yusuf Chepkeitany have encroached into the same land and have threatened to evict him, an act which he claims, will result in irreparable loss and damage.
The application is however opposed by Jemeli and Judith who I shall now refer to as “the respondents”. It is their contention that the subject land forms part of the Estate of the late Chepkeitany.
Migwi, who has attached the relevant agreement for sale of the subject land, had initiated this suit by way of an originating summons, taken out under Order XXXVI rule 7 of the Civil Procedure rules.
In an application of this nature, it is for the applicant who calls upon the Judge to exercise his discretionary powers, to establish that he has a prima facie case with a probability of success. It is important to note that an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which will not be compensated by way of damages. Where in doubt, the court should decide the application on the balance of convenience. Such was the principal as well laid down in the case of Geilla v. Cassman Brown & Co. Ltd [1973] EA 358.
I have perused the pleadings herein and I do note that the applicant, who as stated earlier, has attached the agreement for the sale (entered into between him and the late Chepkeitany) to his supporting affidavit; I also note that he is in possession of the subject land, which fact has not been controverted by the respondents.
In my opinion, and based on the pleadings on record, I form the opinion the applicant has a prima facie case with a probability of success and in view of the said developments and long occupation, damages may not be an adequate remedy.
But even if I am wrong in the above finding, the balance of convenience tilts in favour of the applicant who has been in occupation of the land which he also claims to have developed considerably.
I do therefore find that this application is meritorious and I do grant him an order in line with his prayer 2.
Costs shall however be in the cause.
Dated and delivered at Eldoret this 7th day of March 2006.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
No appearance for either party.