[2014] KEHC 8232 (KLR)
The court found that the applicant failed to establish a prima facie case with a probability of success, as it did not provide sufficient evidence of ownership of the suit property. The only document produced was an illegible copy of a letter of allotment, with no clarity as to whom it was addressed or which...
Source-derived case information.
- Citation
- [2014] KEHC 8232 (KLR)
- Parties
- Applicant: Embakasi Housing Company Limited; Respondent: The Chief Registrar, Ministry of Lands
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 482 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- MM Gitumbi
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Allotment Letters, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Embakasi Housing Company Limited
Applicant
The Chief Registrar, Ministry of Lands
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success to warrant the grant of a temporary injunction.
- 2 Whether the applicant has demonstrated ownership of the suit property sufficient to restrain the respondent from issuing allotment letters or title deeds to third parties.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case with a probability of success, as it did not provide sufficient evidence of ownership of the suit property. The only document produced was an illegible copy of a letter of allotment, with no clarity as to whom it was addressed or which property it related to, nor evidence of compliance with its conditions. As the first condition for granting an interlocutory injunction was not met, the court declined to consider the remaining conditions and dismissed the application in accordance with established legal principles.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 22nd April 2014 is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND DIVISION
ELC. CASE NO. 482 OF 2014
EMBAKASI HOUSING
COMPANY LIMITED……………………………….PLAINTIFF/APPLICANT
VERSUS
THE CHIEF REGISTRAR
MINISTRY OF LANDS………………………...DEFENDANT/RESPONDENT
RULING
Coming up before me for determination is the Notice of Motion dated 22nd April 2014 in which the Plaintiff/Applicant seeks for orders of temporary injunction restraining the Defendant/Respondent from giving title deeds and issuing allotment letters and or allocation the parcel of land known as L.R. No. 33745/IV/554 File No. 85098 (hereinafter referred to as the “suit property”) pending the hearing and determination of this Application and suit. The Plaintiff/Applicant also seeks for the costs of this Application to be provided for.
The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of Peter Macharia Nyanjathi, the Chairman of the Applicant, sworn on 22nd April 2014 in which he averred that the Applicant is a registered land buying company which carries on the business of buying land for subdivision among its registered members. He further swore that the Plaintiff subdivided the suit property into plots and its members were waiting for their allotment letters thereof. He further averred that there are persons who are encroaching into the suit property and they have allotment letters and or title documents illegally issued to them by the Respondent. He further stated that upon paying a visit to the Lands Offices at Ardhi House, he confirmed that in deed there is illegal issuance of allotment letters and title deeds by the Respondent to individuals who are not members of the Plaintiff in respect of the suit property.
The Application is uncontested.
In deciding whether to grant the interlocutory injunction, I wish to refer to and rely on the precedent set out in the case of GIELLA versus CASSMAN BROWN (1973) EA 358 in which the conditions for the grant of an interlocutory injunction were settled as follows:
“The conditions for the grant of an interlocutory 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 be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
Has the Plaintiff/Applicant made out a prima facie case with a probability of success? In the case of MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125, a prima facie case was described as follows:
“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a 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.”
Has the Plaintiff/Applicant established a prima facie case? This heavily depends on whether the Plaintiff/Applicant has been able to convince this court that it is indeed the proprietor of the suit property. The conventional way of proving this is by production to this court of valid title documents in respect of the suit property. The document that the Plaintiff has produced as evidence of ownership of the suit property is an illegible copy of a letter of allotment. It is not clear to my eye to whom the said letter of allotment is addressed and which property it relates to. Further, no evidence has been produced to indicate that the Plaintiff/Applicant complied with the conditions set out therein in order to assume ownership of the suit property. To that extent therefore, I find that the Plaintiff/Applicant has not established a prima facie case with a probability of success at the main trial.
Since the Plaintiff has failed to prove the first ground in the grounds set down in the celebrated case of Giellaversus Cassman Brown, this Honourable Court need not venture into the other grounds. This position was upheld in the Court of Appeal case of Kenya Commercial Finance Co. Ltd versus Afraha Education Society (2001) 1 EA 86as follows:
“The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is … sequential so that the second condition can only be addressed if the first one is satisfied…”
In light of the foregoing, I hereby dismiss this Application. Costs shall be in the cause.
SIGNED AND DELIVERED AT NAIROBI THIS 19TH
DAY OF SEPTEMBER 2014.
MARY M. GITUMBI
JUDGE