[2014] KEHC 4841 (KLR)
The court found that the applicant failed to demonstrate a prima facie case with a probability of success or that he would suffer irreparable injury if the injunction was not granted. The evidence presented by the applicant was inconsistent, particularly regarding the timing and basis of his ownership claim. The...
Source-derived case information.
- Citation
- [2014] KEHC 4841 (KLR)
- Parties
- Plaintiff: Epuyo Lowoton; Defendant: Natipo Lochampa
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 62 of 2014
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- EO Obaga
- Legal Topics
- Temporary Injunctions, Land Allotment Disputes, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Epuyo Lowoton
Plaintiff
Natipo Lochampa
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success to warrant a temporary injunction.
- 2 Whether the applicant will suffer irreparable injury if the injunction is not granted.
- 3 Whether the dispute is properly resolved through injunctive orders or is a boundary dispute requiring proof of encroachment.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case with a probability of success or that he would suffer irreparable injury if the injunction was not granted. The evidence presented by the applicant was inconsistent, particularly regarding the timing and basis of his ownership claim. The dispute appeared to be a boundary issue, which could not be resolved through injunctive relief without clear proof of encroachment. The application was therefore dismissed as the threshold for granting a temporary or mandatory injunction was not met.
Court Disposition
application dismissed
Orders
- The applicant's application for a temporary injunction is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 62 OF 2014
EPUYO LOWOTON........................................................PLAINTIFF
VERSUS
NATIPO LOCHAMPA................................................DEFENDANT
R U L I N G
1. The applicant Epuyo Lowoton brought a notice of motion dated 03/04/2014 seeking a temporary injunction restraining the defendant/Respondent, his servants, agents and/or anybody purporting to act for him or through him from trespassing upon or committing any acts upon the plaintiff's Plot No. 214 “B” Kanamkemer Lodwar in Turkana County pending the hearing and determination of the suit. He also prays that the OCS Lodwar Police Station do supervise compliance of the court's order. He also prays for costs.
2. The application was served upon the respondent who neither entered appearance nor filed a replying affidavit in opposition to the same. The respondent contends that he bought the suit land from the respondent in 2004 at Shs.38,000/=. He annexed a copy of the agreement.
3. The applicant then went to Lodwar Municipal Council who issued him with a letter of allotment. The plot was subsequently demarcated by the Ministry of lands.
4. I have looked at the applicant's documents annexed to the supporting affidavit. The document referred to as an agreement does not state which plot was being sold to the applicant. Whereas the applicant contends that he bought the plot from the respondent in 2004, he has annexed a letter of allotment from the Municipal Council of Lodwar indicating that the plot was allocated to the applicant during a plots allocation meeting held on 24/9/1992.
5. What is interesting is that the letter of allotment is dated 20/6/2004 whereas the allocation is said to have been done on 24/9/1992. If the plot had been allocated to the applicant in 1992, why was he then buying the same from the respondent in 2004?
6. There is a letter from the Town Clerk of Lodwar Municipal Council dated 7/10/2005. The letter shows that the respondent has fenced off a public road and has encroached on to the applicant's plot. If this is the case, then the dispute herein relates to a boundary dispute. This dispute cannot be resolved through injunctive orders which will result in the respondent being removed from the plot without the applicant proving that there is indeed such encroachment.
7. What in essence the applicant is seeking is a mandatory injunction removing the respondent from the plot. This cannot be granted. I find that the applicant has not demonstrated that he has a prima facie case with probability of success or that he will suffer injury which is irreparable. The applicant's application is hereby dismissed with no order as to costs.
It is so ordered.
Dated, signed and delivered at Kitale on this 3rd day of June, 2014.
E. OBAGA
JUDGE
In the presence of Mr Bororio for applicant. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
3/6/2014