[2020] KEELC 75 (KLR)
The court found that the applicant failed to establish a prima facie case with a probability of success, as the main grievances arose from the determination in Narok Chief Magistrate ELC No. 133 of 2018. The applicant should have sought a stay or appealed in the original proceedings rather than filing a fresh suit...
Source-derived case information.
- Citation
- [2020] KEELC 75 (KLR)
- Parties
- Plaintiff: Dickson Esho (suing as a personal representative of the estate of Reteti Esho, deceased); Defendant: Suiyanka Mayune (sued as personal representative of the estate of Kirongis Ole Mayone, deceased); Defendant: Elizabeth Siamanta Yiaile; Defendant: Patita Keiwua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 13 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Injunctions, Boundary Disputes, Res Judicata, Jurisdiction of Land Registrar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Esho (suing as a personal representative of the estate of Reteti Esho, deceased)
Plaintiff
Suiyanka Mayune (sued as personal representative of the estate of Kirongis Ole Mayone, deceased)
Defendant
Elizabeth Siamanta Yiaile
Defendant
Patita Keiwua
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the District Land Registrar from determining boundaries between the disputed land parcels.
- 2 Whether the applicant's grievances should have been addressed through an appeal or stay in the original suit rather than a fresh application.
- 3 Whether the application is defective for introducing issues already determined in previous suits.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case with a probability of success, as the main grievances arose from the determination in Narok Chief Magistrate ELC No. 133 of 2018. The applicant should have sought a stay or appealed in the original proceedings rather than filing a fresh suit and application. Consequently, the application for a temporary injunction was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 24th June, 2020 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC NO. 13 OF 2020
DICKSON ESHO (suing as a personal rep.
of the estate of RETETI ESHO (deceased)........................................PLAINTIFF
-VERSUS-
SUIYANKA MAYUNE (sued in his capacity as personal rep.
of the estate of KIRONGIS OLE MAYONE (DECEASED).....1ST DEFENDANT
ELIZABETH SIAMANTA YIAILE............................................2ND DEFENDANT
PATITA KEIWUA.........................................................................3RD DEFENDANT
RULING
The Plaintiff/Applicant had by a Notice of Motion dated 24th June, 2020 sought for orders of a temporary injunction barring the District Land Registrar Narok from visiting Land parcel Narok/Cis Mara/Enabelbel/Enengatia/258 with the intention of fixing boundaries between the aforementioned land parcel and Land Parcel No. Narok/Cis Mara/Enabelbel/Enengatia/257 pursuant to and in compliance with the orders of Narok Chief Magistrate in Elc Suit No. 133 of 2018 pending the hearing and determination of the suit herein. The Application is based on the grounds that the 1st Defendant had obtained Judgement in Narok Chief Magistrate’s Court Elc No. 133 of 2018 in which the court had determined and directed that the boundaries of the two parcels of land be fixed and determined.
The Applicant further argued that he was not a party to the aforesaid suit and as a result the respondents had omitted the determination of the boundaries of land Parcel Narok/Cis Mara/Enabelbel/Enengatia/1220 and 1221 whose boundaries are also in dispute as the Magistrate Court was misled to usurp the jurisdiction of the District Land Registrar to determine the boundary dispute and thus the applicant seeks the intervention of this court to arrest the execution of the judgement. The application was further supported by the affidavit of the Applicant.
The 1st Defendant had opposed the said application and filed 7 grounds of opposition thereto in which he stated that the suit is incurably defective as the applicant does not disclose any cause of action and that the remedy sought is untenable in law.
The 1st respondent further contends that the applicant is introducing a claim already heard and determined vide Narok ELC Appeal No. 3 of 2019 and Narok ELC Magistrate Court ELC No. 133 of 2018 and further that the applicant has not demonstrated what prejudice they will suffer and that the instant suit contravenes the provisions of section 18 and 19 of the Land Adjudication Act. The 2nd and 3rd Respondent had indicated during the mention of the matter that they did not intend to file any response or submit the issues raised.
I have considered the application and the 1st Respondent’s grounds of opposition to the same. This is an application in which the applicant seeks the equitable remedy of injunction to restrain the District Land Registrar from visiting and determining the boundaries of Land Parcels Narok/Cis Mara/Enabelbel/Enengatia 257 and 258. The Applicant had indicated that the aforesaid visit was pursuant to a judgement delivered by the Narok Chief Magistrate Court in ELC No. 133 of 2018.
The grounds upon which the orders of injunction as prayed for by the Applicant are now settled as held in the case of Geilla –Versus- Cassman Brown(1975)EA which are whether the applicant has demonstrated a prima facie case with probability of success, whether damages will be adequate compensation and in whose favour does the balance of convenience lies.
The 1st Respondent in opposition to the application had stated that the application is incurably defective as the applicant seeks to introduce issues that have already been determined in Narok Chief Magistrate ELC No. 133 of 2018.
From the pleadings it is clear that the order that the applicant seeks is to stop the District Land Registrar from determining the boundaries.
Having considered the application before me I find that the applicant has improperly filed the instant application before this court their main grievances in the application and the suit is as a result of the determination of Narok CMC ELC No. 133 of 2018 the applicant ought to have either applied for a stay before the said court or moved this court by way of an application neither of which they did but preferred to file a fresh suit and the instant application.
From the above it is my finding that the applicant has failed to establish a prima facie case with a probability of success and on that ground alone the instant application fails and I need not delve on the grounds that one must satisfy to be granted orders of injunction and consequently the application lacks merit and I thus dismiss the Notice of Motion dated 24th June, 2020 with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 12th day of November, 2020
Mohammed N. Kullow
Judge
12/11/2020
in the presence of: -
CA:Chuma
Mr Langat holding brief for Koech for the plaintiff
Ms Karia holding brief for Muigai for the 1st defendant
N/A for the 2nd and 3rd defendant
Mohammed N. Kullow
Judge
12/11/2020