[2017] KEELC 1400 (KLR)
The court found that the Plaintiff failed to provide any evidence to establish, even on a prima facie basis, that he is the owner of the disputed un-surveyed land in Dindiri village. In contrast, the Defendant produced proceedings from a panel of elders chaired by the Assistant Chief, which established that the...
Source-derived case information.
- Citation
- [2017] KEELC 1400 (KLR)
- Parties
- Plaintiff: Enock Chio Ziro; Defendant: Raymond Makupe Tunje
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 121 of 2016
- Procedural Posture
- Interlocutory Application / Ruling on Interim Injunction Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote, JO Olola
- Legal Topics
- Injunctive Relief, Ownership Dispute, Adverse Possession, Land Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enock Chio Ziro
Plaintiff
Raymond Makupe Tunje
Defendant
Procedural Posture
Interlocutory Application / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of an interim injunction restraining the Defendant from dealing with the suit property.
- 2 Whether the Plaintiff has demonstrated ownership of the un-surveyed plot in Dindiri village.
- 3 Whether the Defendant's occupation and use of the land is lawful.
Ratio Decidendi
The court found that the Plaintiff failed to provide any evidence to establish, even on a prima facie basis, that he is the owner of the disputed un-surveyed land in Dindiri village. In contrast, the Defendant produced proceedings from a panel of elders chaired by the Assistant Chief, which established that the Defendant's father had utilized the suit property for over 40 years. The Defendant's long-standing occupation and the findings of the elders' panel weighed against the Plaintiff's claim. Consequently, the Plaintiff did not meet the threshold for the grant of an interlocutory injunction as set out in Giella v Cassman Brown. The application was therefore dismissed with costs to the...
Court Disposition
application dismissed with costs
Orders
- The Plaintiff's Application dated 18th May, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CASE NO. 121 OF 2016
ENOCK CHIO ZIRO......................................................PLAINTIFF
VERSUS
RAYMOND MAKUPE TUNJE.................................DEFENDANT
RULING
1. In the Application dated 18th May, 2016, the Plaintiff is seeking for the following reliefs:
a.That pending hearing and determination of this suit the Defendant, his emp0loyees, servants and or agents be restrained from trespassing and dealing with the suit property, until the hearing and determination of this suit.
b.That costs for this Application be provided for.
2. The Application is premised on the grounds that the Applicant is a resident of Dindiri village, Kilifi County; that the Defendant has trespassed on the land and that he is the owner of un-surveyed plot measuring two (2) acres.
3. In response, the Respondent stated that he is the owner of the said 2 acres situated in Dindiri village in Chonyi area of Kilifi County.
4. According to the Defendant, he inherited the said land from his late father and that he has utilized the land for the past 50 years; that the Applicant has failed to disclose that he own the land next to the suit property and that the dispute was heard and determined by the Land Disputes Tribunal.
5. It is the Defendant’s case that the Tribunal found that it was his late father who had occupied the land for over 40 years and that it is the Plaintiff who has been destroying his crops on the suit land.
6. I have considered the brief submissions that were filed by the parties.
7. Although the Plaintiff claims that the un-surveyed land in Dindiri village belongs to him, he has not offered any evidence to show, prima facie, that he is the owner of the said land.
8. The Defendant on the other hand produced a copy of the proceedings of the panel of elders chaired by the Assistant chief in which the elders established that it is the Defendant’s father who has been utilizing the suit property for more than 40 years.
9. In the circumstances, I dismiss the Plaintiff’s Application dated 18th May, 2016 with costs.
DATED AND SIGNEDATMACHAKOSTHIS2NDDAY OFMAY, 2017.
O.A. ANGOTE
JUDGE
DATED, DELIVEREDANDSIGNEDATMALINDITHIS12THDAY OFMAY, 2017.
J.O. OLOLA
JUDGE