[2018] KEELC 56 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as there was insufficient evidence of an enforceable oral agreement for the exchange of land for construction services. The court observed that it is not customary for a landowner to transfer land in exchange for...
Source-derived case information.
- Citation
- [2018] KEELC 56 (KLR)
- Parties
- Plaintiff: Dismas Nyongesa Nasurutia; Defendant: Nelson Amugune Lwago
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 53 of 2018
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunction, Oral Land Agreements, Trespass, Possession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dismas Nyongesa Nasurutia
Plaintiff
Nelson Amugune Lwago
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of a temporary injunction restraining the defendant from interfering with the suit land.
- 2 Whether there was an enforceable oral agreement for the exchange of land for construction services between the parties.
- 3 Whether the plaintiff would suffer irreparable loss not compensable by damages if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as there was insufficient evidence of an enforceable oral agreement for the exchange of land for construction services. The court observed that it is not customary for a landowner to transfer land in exchange for construction work without clear and convincing evidence. The plaintiff's claim amounted to his word against the defendant's, and the evidence did not support the existence of such an agreement. Furthermore, the plaintiff did not demonstrate that he would suffer irreparable loss that could not be compensated by damages. Consequently, the court declined to grant the temporary...
Court Disposition
application dismissed
Orders
- The application dated 24th May 2018 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC CASE NO. 53 OF 2018
DISMAS NYONGESA NASURUTIA ………............ PLAINTIFF
VERSUS
NELSON AMUGUNE LWAGO................................DEFENDANT
R U L I N G
1. The applicant brought an application dated 24/5/2018 seeking the following orders:-
(1) ………(spent.)
(2) That this honourable court be pleased to issue an order of temporary injunction against the respondent restraining himself, his agents, servants, employees and/or any other persons claiming through him encroaching, trespassing and or in any other manner interfering with the plaintiff’s/applicant’s possession and occupation of his land known as Mung’oma Farm Plot No. 51 measuring 0. 06 Hectares pending full hearing and determination of the application herein.
(3) That this honourable court be pleased to issue an order of temporary injunction against the defendant/respondent restraining himself, his agents, servants, employees and/or any other persons claiming through him encroaching, trespassing and or in any other manner interfering with the plaintiff’s/applicant’s peaceful possession and occupation of his portion of land known as Mung’oma Farm Plot No. 51 measuring approximately 0. 15 acres pending full hearing and determination of this matter.
(4) That costs of the application be borne by the respondent.
2. The application is based on the grounds set out at the foot of the notice of motion as follows:-
(a) That the plaintiff/applicant is the registered owner of that parcel of land known as Mung’oma Farm Plot No. 51 measuring about 0. 06 Hectares.
(b) That the plaintiff/applicant acquired and assumed possession, occupation and ownership of the suit land measuring 0. 15 acres from the respondent herein on 4th June, 2006 when they had an oral agreement with the applicant to build a five roomed residential house for the respondent in exchange for the said land in question, a house that the applicant build and completed immediately in which the respondent lives upto date.
(c) That the plaintiff/applicant lived so peacefully on the suit land with the respondent for twelve (12) good years now until on 25th November, 2017 when he was summoned by the Assistant County Commissioner to his office in company of the Area Chief and the respondent herein who all together asked the applicant to sign on a document purportedly an agreement requiring him to pay the respondent Kshs.110,000/- being consideration for the extra 0. 05 acres of land allocated to him.
(d) That on 25th April, 2018 the respondent without any justifiable cause whatsoever, color or right and without consent and/or knowledge of the plaintiff trespassed and or encroached on the applicant’s land and sold the same.
3. The plaintiff’s case is that he built a house for the defendant. In return for the work done the defendant gave him the parcel of land in question. Later on the defendant sold the parcel of land to another person.
4. The contract between the plaintiff and the defendant is said to have been oral. The defendant avers in his response that the plaintiff was a licensee who constructed for him a house for the sum total of Kshs. 70,000/= in terms of his labour and whom he paid Kshs. 30,000/= and that the plaintiff house that the he built on the defendant’s land was for his occupation during the period of construction of the defendant’s house.
5. Having regard to all the evidence before me I find that there were contractual relations between the parties regarding the construction of the defendant’s house. It is ordinary for a landowner to avail accommodation for a person who is constructing a house for him. It is not natural for a land owner for whom a house has been constructed to give away his land in return for the construction of the house. And that is the observation that makes me look for more beyond the allegation of an oral agreement between the parties in this case to signify that there was an exchange of land for services rendered.
6. However, I have nothing to conclude that there was an agreement for the exchange of land between the two parties herein.
7. In my view the application before me amounts to only the plaintiff’s word against the defendant’s and it is not safe in the circumstances to grant an injunction on the basis of that weight of evidence.
8. I therefore find that the plaintiff has failed to prove that he has a prima facie case with probability of success.
9. Regarding the issue of loss I have not seen it demonstrated by way of evidence that the plaintiff would suffer loss that is not capable of being compensated for by way of damages.
10. I therefore dismiss the application dated 24th May 2018 with costs to the defendant.
Dated, signed and delivered at Kitale on this17thday of July,2018.
MWANGI NJOROGE
JUDGE
17/7/2018
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Collins
Mr. Ndarwa for the defendant
Plaintiff in person present
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
17/7/2018