[2019] KEELC 3364 (KLR)
The court found that the applicant had established a prima facie case for the joinder of the 2nd and 3rd respondents, as they were transferees of the disputed land and necessary parties for the just determination of the suit. The court also held that the applicant demonstrated a likelihood of suffering irreparable...
Source-derived case information.
- Citation
- [2019] KEELC 3364 (KLR)
- Parties
- Applicant: Edward Shavanji Angwe; Respondent: Malaki Akhamwa Makomere; Respondent: Gladys Chitai; Respondent: Everlyn Bwoya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 103 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Joinder and Injunction
- Outcome
- Application partly allowed.
- Judges
- NA Matheka
- Legal Topics
- Joinder of Parties, Interlocutory Injunctions, Status Quo Orders, Eviction Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Shavanji Angwe
Applicant
Malaki Akhamwa Makomere
Respondent
Gladys Chitai
Respondent
Everlyn Bwoya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Joinder and Injunction
Legal Issues
- 1 Whether the 2nd and 3rd respondents should be enjoined as parties to the suit.
- 2 Whether the applicant is entitled to a temporary injunction restraining the respondents from evicting him or interfering with his use of the suit land.
- 3 Whether the status quo should be maintained pending the hearing and determination of the suit.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the joinder of the 2nd and 3rd respondents, as they were transferees of the disputed land and necessary parties for the just determination of the suit. The court also held that the applicant demonstrated a likelihood of suffering irreparable harm through threatened eviction, which could not be adequately compensated by damages. Applying the principles from Giella v Cassman Brown and Mrao Ltd v First American Bank, the court granted the prayer for joinder and ordered that the status quo be maintained, thereby restraining the respondents from evicting or interfering with the applicant's possession of the land until...
Court Disposition
Application partly allowed.
Orders
- The 2nd and 3rd respondents are enjoined as parties to the suit.
- Status quo to be maintained pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 103 OF 2017
EDWARD SHAVANJI ANGWE.............................................PLAINTIFF/APPLICANT
VERSUS
MALAKI AKHAMWA MAKOMERE....................1ST DEFENDANT/RESPONDENT
GLADYS CHITAI ..............................................................................2ND RESPONDENT
EVERLYN BWOYA...........................................................................3RD RESPONDENT
RULING
The application is dated 15th March 2019 seeking the following orders;
1. The honourable court do determine that for the purpose of this proceedings, the 2nd respondent Gladys Chitai and the 3rd respondent Everline Bwoya be enjoined in this suit.
2. An order of temporary injunction restraining the respondents, their agents, servants or assignees from evicting the applicant from land parcels No. MARAMA/SHIROTSA/2219 and MARAMA/SHIROTSA/222 being the subdivision of the original title MARAMA/SHIROTSA/268.
3. An order of temporary injunction restraining the respondents, their agents, servants or assignees from entering upon, tilting or in any manner dealing with the peaceful use of the applicant’s parcels No. MARAMA/SHIROTSA/2219 and MARAMA/SHIROTSA/2220 being the subdivision of the original title MARAMA/SHIROTSA/268.
4. The suit does proceed to hearing and determination with the 1st, 2nd and 3rd respondent as the defendants.
5. Costs of the application do abide the outcome.
The plaintiff/applicant submitted that he sought under originating summons title to land parcel MARAMA/SHIROTSA/2219 and MARAMA/SHIRTOSA/2220 being the subdivisions of the original title MARAMA/SHIROTSA/268. That the 1st respondent has sold, sub divided and effected transfer of the original title MARAMA/SHIROTSA/268 to third parties. That the 2nd and 3rd respondents are in the process of evicting him and his family from his parcel of land. That the enjoining of the 2nd and 3rd respondents is mandatory before the case can proceed. That Gladys Mukungu and Francis Aywaya are the buyers of the original parcel of land MARAMA/SHOROTSA/268. The 1st and 2nd respondent gave oral submissions. The 1st respondent submitted that the land is hers and she sold it. The 2nd respondent stated she was a buyer.
This court has carefully considered all the submissions herein. The principals governing the grant of interlocutory injunction are clear. As stated in the case of Giella vs. Cassman Brown (1973) EA 358.
“The conditions of granting an injunction are now, I think well settled in East Africa. First an applicant must show a prima facie case with a probability of success. Secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
Furthermore, as elaborated in the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others (2003) Hon Bosire J.A. held that:
“So what is a prima facie case? I would say that it is a case in which on the material presented to the court or tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter ............”
Further he goes on to state that“................. a prime facie case is more than an arguable case, it is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”
This application is brought on the grounds that, the 1st respondent sold and subdivided the land parcel in question and effected transfer to the 2nd and 3rd respondents. The enjoining is necessary for the suit to proceed to hearing and determination. The respondents are also threatening to evict the applicant and his family. I find that the orders sought are in interest of justice. I find that the applicant has established a prima facie case and I grant prayer I of the application. I also order that the status quo be maintained pending the hearing and determination of this suit. Costs of this application to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 8TH DAY OF MAY 2019.
N.A. MATHEKA
JUDGE