[2012] KEHC 1141 (KLR)
The court found that the applicant had established a prima facie case as he was already in occupation of the suit premises and had undertaken development before the 1st defendant's involvement. The evidence showed that the applicant's predecessor in title, Getrude Akello, was initially allotted the land by the 2nd...
Source-derived case information.
- Citation
- [2012] KEHC 1141 (KLR)
- Parties
- Plaintiff: Denis Ochola Olango; Defendant: Thomas Mboya Oyier; Defendant: Municipal Council of Kisumu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 26 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction
- Outcome
- application for temporary injunction allowed
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Allocation of Land, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Denis Ochola Olango
Plaintiff
Thomas Mboya Oyier
Defendant
Municipal Council of Kisumu
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of a temporary injunction.
- 2 Whether the applicant stands to suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favours the applicant.
Ratio Decidendi
The court found that the applicant had established a prima facie case as he was already in occupation of the suit premises and had undertaken development before the 1st defendant's involvement. The evidence showed that the applicant's predecessor in title, Getrude Akello, was initially allotted the land by the 2nd defendant, and the subsequent repossession and reallocation raised legal questions to be determined at trial. The court also noted that the applicant would suffer irreparable harm if the injunction was not granted, as he risked losing possession and the benefit of his developments. The balance of convenience was found to favour the applicant, given his occupation and investment...
Court Disposition
application for temporary injunction allowed
Orders
- A temporary injunction is issued restraining the defendants from trespassing or encroaching on land parcel Kisumu Municipality Block 5/744 pending the hearing and determination of the suit.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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DENIS OCHOLA OLANGO …..................................PLAINTIFF/APPLICANT
VERSUS
THOMAS MBOYA OYIER ….....................1ST DEFENDANT/RESPONDENT
MUNICIPAL COUNCIL OF KISUMU.....2ND DEFENDANT / RESPONDENT
RULING
The plaintiff/applicant application dated 14th August 2012 prays that this court issues a temporary injunction to restrain the defendant from trespassing or encroaching on land parcel number Kisumu Municipality Block 5/744 pending the hearing and determination of this suit. The same is supported by his sworn affidavit dated 9th August 2012.
The applicant avers that he purchased the suit land from one Getrude Akello on 7th June 2011 for a total purchase consideration of Kshs. 1,800,000. The said vendor was an allotee of the suit property from the 2nd defendant. The applicant has exhibited the sale agreement as well as the documents from the 2nd defendant to the said Getrude Akello.
The affidavit further shows that there has been development on the said land where a flat slap foundation has been done. There is also 2 fences parallel to each other.
According to the applicant the first fence was put by him while the 2nd fence and the “mabati” structure was put by the 1st defendant.
The 1st defendant has opposed the application vide his replying affidavit dated 31st August 2012. Where he alleges that he purchased the land from one Leah Amondi Asewe who was alloted the suit land by the 2nd respondent. The said affidavit contains various documents including a sale agreement between the 1st defendant and the said Leah Asewe.
At this juncture this court only needs to satisfy itself that the applicant has established a prima facie case and that should the defendant be allowed to proceed the plaintiff /applicant stands to suffer irreparable harm and loss.
From a quick glance at the affidavit evidence on record it appears that Getrude Akello was allotted the suit property by the 2nd defended. For some reasons the same was repossessed and alloted to one Leah Amondi Asewe who sold it to the 1st defendant. By the time this took place the said Getrude Akello had already done a slab foundation.
I have further seen the letter dated 22nd November 2010 from the Commissioner of Lands to the 2nd defendant clerk in regard to “Repossessions, Advertisement and Reallocation of Plots within Kanyakwar, Kibos, Migosi, Mamboleo, Milimani, Block 5 and Nyalenda Area”.
The said letter warns the 2nd defendant to desist from such action since the same run contrary to Chapter 280 Laws of Kenya.
On a balance of convenience I believe the applicant has established a prima facie case. He is already in occupation of the premises and carried on some development before the arrival of the 1st defendant . There are weighty issues to be canvassed during the determination of the substantive cases. I shall in the premises allow the application dated 14th August 2012 with costs to the plaintiff.
Dated, signed and delivered at Kisumu this 14th day of November 2012.
H.K. CHEMITEI JUDGE
HKC/aao