[2010] KEHC 2284 (KLR)
The court found that the plaintiff had demonstrated ownership of the suit land by virtue of a registered title deed, which is absolute and indefeasible. The defendants, having failed to enter appearance or file any response, did not challenge the plaintiff's evidence or entitlement to the land. The court held that...
Source-derived case information.
- Citation
- [2010] KEHC 2284 (KLR)
- Parties
- Plaintiff: Eliakim Washington Olweni; Defendant: Wilson Kibor Mutai Arap Sang
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 2010
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction granted in favour of the plaintiff; costs to the plaintiff.
- Legal Topics
- Injunctive Relief, Land Ownership, Title Deeds, Trespass, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliakim Washington Olweni
Plaintiff
Wilson Kibor Mutai Arap Sang
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from trespassing on the suit land pending determination of the main suit.
- 2 Whether the plaintiff's title deed is absolute and indefeasible in the absence of a defence or reply from the defendants.
Ratio Decidendi
The court found that the plaintiff had demonstrated ownership of the suit land by virtue of a registered title deed, which is absolute and indefeasible. The defendants, having failed to enter appearance or file any response, did not challenge the plaintiff's evidence or entitlement to the land. The court held that it has a duty to protect the sanctity of title and, in the absence of any defence, granted the interlocutory injunction restraining the defendants from trespassing on the land until the main suit is determined. Costs were awarded to the plaintiff.
Court Disposition
Interlocutory injunction granted in favour of the plaintiff; costs to the plaintiff.
Orders
- An injunction is hereby issued restraining the defendants from trespassing, cultivating, or interfering with LR Uasin Gishu/Ngenyilel Settlement Scheme/448 until determination of the main suit.
- Costs of this application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case 50 of 2010
ELIAKIM WASHINGTON OLWENI......................................PLAINTIFF
=VERSUS=
WILSON KIBOR MUTAI ARAP SANG..............................DEFENDANT
RULING
Application for injunction dated 23rd March 2010.
I.Procedure
1. The delay in hearing this matter since
March 2010 was occasioned by the applicant filing this case in the High Court of Kenya at Nakuru being case No. 80 of 2010. The Applicant resides in Nakuru. He has though land in the Eldoret region being LR Uasin Gishu/Ngenyilel Settlement Scheme/448.
2. He alleged to have bought the same in 1971 and
prayed that strangers who evaded and cultivated the land be restrained. The Court at Nakuru ordered the file to be transferred and placed before the High Court at Eldoret
(Maraga J 29th March 2010).
3. The suit was filed on 25th March 2010. An application for injunction was applied for against the two Defendants for trespass.
4. This Court ordered that the said application of 25th March 2010 be served personally upon the two Defendants. As an abundant of caution, not only were the two served but the administration were also served with the pleadings and or application.
5. The two Defendants failed to appear.
II.Application 25/3/2010
6. The Applicant/Plaintiff alleged that sometime in 1971, he bought the parcel of land in question and thereafter placed workers thereon. He was registered sometime in 1998 and obtained a title deed in his name in the year 2000.
7. What was of concern is that in the year 2009, a stranger evaded his land cultivated and thereafter left. The strangers managed to harvest the crops. He came to know later it was the 1st Defendant. The 2nd Defendant cultivated in the year 2010. It was then that the Plaintiff filed suit and asked for restraining orders.
8. Unfortunately, neither 1st and 2nd Respondents entered appearance nor filed a reply to the allegations.
9. The Applicant’s advocate argued his client holds a title that is indivisible and absolute that cannot be challenged.
III.Opinion
10. In the absence of the reply by the two Defendants and in the proof that the Plaintiff holds a title deed that is indivisible and absolute. This Court has a duty to protect the sanctity of the title. The title has been shown to this Court and to the police.
11. I accordingly grant orders of injunction against the two Defendants as prayed until the determination of the main suit that must be heard.
12. There will be costs to the Applicant.
DATED THIS3RDDAYOFJUNE, 2010 AT ELDORET.
…………………………………….
M.A. ANG’AWA,
JUDGE.
Advocate
(i)O.H. J. Okeka instructed by the firm of O.H.J. Okeka & Co. Advocate for the Plaintiff/Applicant -
present
(ii) 1st and 2nd Defendants/Respondents - absent