[2011] KEHC 2458 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of a prohibitory injunction, as the evidence showed he was the owner of the suit land and had commenced development with the support of the previous owner. The defendant did not contest the application, and the plaintiff's evidence...
Source-derived case information.
- Citation
- [2011] KEHC 2458 (KLR)
- Parties
- Plaintiff: David Mwangi Wanjohi; Defendant: Philip Koech
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 162 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Legal Topics
- Temporary Injunctions, Trespass, Ownership Disputes, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mwangi Wanjohi
Plaintiff
Philip Koech
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of a temporary injunction against the defendant.
- 2 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of a prohibitory injunction, as the evidence showed he was the owner of the suit land and had commenced development with the support of the previous owner. The defendant did not contest the application, and the plaintiff's evidence was unchallenged. The risk of irreparable harm to the plaintiff's property and materials was established, and the balance of convenience favoured maintaining the status quo. Accordingly, the court granted the temporary injunction sought, conditional upon the plaintiff filing an undertaking as to damages within three days.
Court Disposition
application allowed
Orders
- A temporary injunction is granted restraining the defendant, his servants and/or agents from interfering, trespassing, threatening, occupying, developing or constructing upon Land No. Uns. B. C. R. Plot No. G. situated within Nandi Hills Town pending the hearing and final determination of the suit.
- The injunction is granted on condition that the plaintiff files an undertaking as to damages within three days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL CASE NO. 162 OF 2009
DAVID MWANI WANJOHI:::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
=VERSUS=
PHILIP KOECH:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
R U L I N G
The Plaintiff, David Mwangi Wanjohi, has brought this Summons in Chambers under the provisions of Order XXXIX Rules 1, 2, 3 and 9 of the Civil Procedure Rules and all the enabling provisions of the Law. The principal order sought is that, pending the hearing and final determination of this suit, there be a temporary injunction against the defendant, his servants and/or agents from further interfering and/or trespassing and threatening the plaintiff and his servants and/or agents and/or workers from occupying and developing or constructing upon Land No. Uns. B. C. R. Plot No. G. situated within Nandi Hills Town (hereinafter “the suit land”).
The application which is supported by affidavits sworn on 25th September, 2009 by the plaintiff and Peter K. Yego, the previous owner of the said parcel, is based on the main grounds that the plaintiff is a bonafide purchaser of the suit land; that he is in the process of constructing a building thereon with the blessings of the previous owner; that the respondent has no colour of right over the suit land; that the construction material is in danger of being stolen and/or damaged by adverse weather conditions and that unless the order is sought, the plaintiff stands to suffer irreparably.
When the application came up for inter partes hearing before me on 11th May, 2011, the same proceeded ex-parte as there was no response to the same. The evidence contained in the supporting affidavits aforesaid reveals that the suit land is the property of the plaintiff who has commenced development thereon by constructing a store and a commercial building now at an advanced stage. The ownership of the suit land by the plaintiff is buttressed by the affidavit evidence of the previous owner. On the said evidence, I am satisfied that the plaintiff has established a case for a prohibitory injunction as sought. The said evidence is not in any event contradicted.
Accordingly, the application is allowed in terms of prayer 3 thereof. The order of injunction is granted on condition that the plaintiff shall file an undertaking as to damages within the next three (3) days.
Costs of the application shall be in the cause.
Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF JUNE, 2011.
F. AZANGALALA
JUDGE.
Read in the presence of:-
Mr. Kiboi for the applicant.
F. AZANGALALA
JUDGE
29/6/2011