[2005] KEHC 1754 (KLR)
The court found that the plaintiff had established a prima facie case as the lawful owner of the suit premises, supported by documentary evidence of purchase, allotment, and long-term possession. The defendant's forceful entry and acts of trespass were unopposed, as he failed to appear or file a defence. The court...
Source-derived case information.
- Citation
- [2005] KEHC 1754 (KLR)
- Parties
- Plaintiff: Edward K. Sang; Defendant: Elijah Kebii Ngerechi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 87 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in favour of the plaintiff; costs to the plaintiff
- Legal Topics
- Injunctive Relief, Trespass to Land, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edward K. Sang
Plaintiff
Elijah Kebii Ngerechi
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit premises.
- 2 Whether the plaintiff has established a prima facie case for the grant of an injunction.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case as the lawful owner of the suit premises, supported by documentary evidence of purchase, allotment, and long-term possession. The defendant's forceful entry and acts of trespass were unopposed, as he failed to appear or file a defence. The court held that the plaintiff merited protection through an injunction to restrain the defendant from further acts of trespass, construction, or cultivation on the land. However, the court declined to grant a mandatory injunction for eviction or demolition, as such relief had not been sought in the application. The defendant was ordered to bear the costs of the application.
Court Disposition
interlocutory injunction granted in favour of the plaintiff; costs to the plaintiff
Orders
- An order of injunction is issued restraining the defendant from trespassing, constructing, or cultivating on the suit premises.
- The defendant shall bear the costs of the application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU Civil Case 87 of 2005
EDWARD K. SANG………………………….….…………………PLAINTIFF VERSUS ELIJAH KEBII NGERECHI……………………………………DEFENDANT
RULING
The plaintiff prayed for a temporary injunction to restrain the defendant/her agents and/or servants from entering, remaining and/or in any way interfering with a property known as No. 226 KIROBON FARM in Keringet area (hereinafter referred to as “the suit premises”) pending the hearing and determination of this suit. The plaintiff, in his affidavit in support of the said application annexed documents which showed that on 27/6/1974 he paid Kshs.2,500/- to Kirobon Farmers Limited and became a shareholder of the said land buying company and on 30/1/1976 he was given a plot allotment certificate for the suit premises, a parcel of land measuring 10 acres. On 27/6/1974, he had also paid Kshs.20/- as membership fees of the said company and on 26/9/1975 he paid Kshs.650/- as survey fees and Stamp Duty. The plaintiff has been residing in the suit premises since 1976 and cultivating thereon.
However, in February 2004 the defendant forcefully entered into the suit premises and tilled a portion thereof and planted some crops. He also started building a house without the plaintiff’s consent and has threatened that he will continue with his unlawful occupation and development of the suit premises.
The defendant was served with the summons and the chamber summons herein but did not enter appearance or file any defence thereto. The plaintiff’s application was therefore unopposed.
Prima facie, I am satisfied that the plaintiff has shown that he is the lawful owner of the suit premises and has been enjoying quiet possession of the same since 1976. He therefore merits protection from this court. I therefore issue an order of injunction in favour of the plaintiff to restrain the defendant from doing any further acts of trespass including constructing any house or structure thereon or cultivating the suit premises.
However, as the defendant has been in unlawful occupation since February, 2004 and as the plaintiff has not filed an application for mandatory injunction to compel the defendant to vacate the suit premises and demolish his houses and/or structures, I will not grant that which has not been prayed for.
The defendant will also bear the costs of this application.
DATED, SIGNED & DELIVERED at Nakuru this 16th day of June, 2005
D. MUSINGA
JUDGE
16/6/2005