[2017] KEELC 1073 (KLR)
The court found that the plaintiff had demonstrated a prima facie case by exhibiting a valid title deed and evidence of purchase. The defendants failed to respond or provide any evidence of their interest in the suit land. The court held that the plaintiff stood to suffer irreparable harm if the injunction was not...
Source-derived case information.
- Citation
- [2017] KEELC 1073 (KLR)
- Parties
- Plaintiff: Eliud Karimi Kiambo; Defendant: David Mwangi Kagwema; Defendant: Mwangi Wanjima John
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 371 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for interlocutory injunction allowed.
- Judges
- MA Silau
- Legal Topics
- Ownership Disputes, Registration of Title, Injunctive Relief, Possession and Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Karimi Kiambo
Plaintiff
David Mwangi Kagwema
Defendant
Mwangi Wanjima John
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of an interlocutory injunction.
- 2 Whether the plaintiff stands to suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of the plaintiff.
Ratio Decidendi
The court found that the plaintiff had demonstrated a prima facie case by exhibiting a valid title deed and evidence of purchase. The defendants failed to respond or provide any evidence of their interest in the suit land. The court held that the plaintiff stood to suffer irreparable harm if the injunction was not granted, as the defendants had already interfered with his possession and could further dispose of or deal with the property. The balance of convenience was found to favour the plaintiff, who was in possession through his caretaker. Accordingly, the court granted the interlocutory injunction and an order of inhibition to preserve the status quo pending determination of the suit.
Court Disposition
Application for interlocutory injunction allowed.
Orders
- An interlocutory injunction is issued restraining the defendants and/or their servants/agents from entering into any sale, charge, lease or other disposition over the suit land Kiambogo/Kiambogo Block 2/18739 until determination of the suit.
- An interlocutory injunction is issued restraining the defendants and/or their servants/agents from depositing materials on, entering, being upon, or otherwise interfering with the plaintiff's possession of the suit land.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 371 OF 2016
ELIUD KARIMI KIAMBO …………………………PLAINTIFF
VERSUS
DAVID MWANGI KAGWEMA …….………..1ST DEFENDANT
MWANGI WANJIMA JOHN ……..…..…….2ND DEFENDANT
RULING
(Application for injunction; principles to be applied; plaintiff having purchased the suit land and being registered as proprietor; defendants interfering with his possession; no reply filed by the defendants to give reasons for the interference; prima facie case established; application for injunction allowed)
1. This suit was commenced on 8 September 2017 by way of plaint. In his suit, the plaintiff has averred that he is the registered proprietor of the land parcel Kiambogo/Kiambogo Block 2/18739 which he purchased from the 1st defendant through a sale agreement entered into on 15 November 2010. He has stated that on 21 August 2013, the 1st defendant executed the relevant transfer forms, which were lodged, and the plaintiff issued with title on 23 August 2013. The transaction is said to have been done through the offices of M/s Cherutich & Company Advocates. Towards the end of 2013, he received information that the 1st defendant wished to sell the same property to another person, and he placed a restriction against the title on 16 December 2013. On 10 November 2015, the plaintiff received a demand letter from the law firm of M/s Cherutich & Company Advocates, demanding that he gives vacant possession of the property to the 2nd defendant. This took him aback since it is the same law firm which undertook his transaction. He avers that he tried to conduct a search of the property in vain as he was told to get a copy of the title deed of the registered owner. He thus believes that the land was transferred to the 2nd defendant irregularly. In the suit, the plaintiff has sought for orders of permanent injunction against the defendants from any dealings over the suit land and an order cancelling the registration of the 2nd defendant as proprietor alongside costs.
2. Together with the suit, the plaintiff filed an application for an interlocutory injunction seeking to have the defendants restrained from any dealings over the suit land or any interference with its possession until this case is heard and determined. It is that application which is the subject of this ruling. Despite being served with summons and with the application, the defendants have not entered appearance to the suit, and neither have they responded to the application. The only material before me is therefore only that tendered by the plaintiff.
3. I have considered the application. The plaintiff in his supporting affidavit has displayed his sale agreement with the 1st defendant and has also exhibited a copy of the title deed that he has. The same shows that it was issued to the plaintiff on 23 August 2013. The plaintiff has further averred that he has been in possession of the suit land through a caretaker, a Mr. Peter Shitemi Alikula. However on 15 August 2017, he was informed by his caretaker that the 2nd defendant has invaded the land and deposited building stones, and in the process, causing damage to his perimeter fence and a growing maize crop. A further supporting affidavit sworn by Mr. Alikula affirms that a lorry did indeed deposit building materials under the instructions of the 2nd defendant.
4. The plaintiff has exhibited a title deed to the suit property and prima facie he is therefore the owner of the suit land. The defendants have not displayed anything to reveal their interest in the suit land. I am therefore persuaded that the plaintiff has demonstrated a prima facie case with a probability of success. If an injunction is not issued, he stands to suffer irreparable loss as the defendants may deal with the property and/or proceed to evict him.
5. Given the above, I do hereby issue an order of interlocutory injunction stopping the defendants and/or their servants/agents from entering into any sale, charge, lease or any other disposition over the suit land. I also issue an interlocutory injunction stopping the defendants and/or their servants/agents from depositing any materials on the suit land, entering, being upon, or in any other way interfering with the plaintiff's quiet possession of the same. In addition, I issue an order of inhibition, restricting the registration of any disposition in the register of the land parcel Kiambogo/Kiambogo Block 2/18739 until the conclusion of this case.
6. On costs, the same shall be to the plaintiff.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 24TH day of October 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURTAT NAKURU
In presence of: -
Mr. Okeke for the plaintiff/applicant
No appearance for the respondents
Court Assistant: Carlton Toroitich
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURTAT NAKURU