[2010] KEHC 1918 (KLR)
The court found that the plaintiff had established a prima facie case by demonstrating that he purchased the property for value, made payment, and obtained vacant possession. The defendants, having been served, failed to respond or contest the application, leaving the plaintiff's evidence unchallenged. The court...
Source-derived case information.
- Citation
- [2010] KEHC 1918 (KLR)
- Parties
- Plaintiff: Erastus Wanyonyi Khaemba; Defendant: John Simiyu Kiberenge; Defendant: Charles Wefwafwa; Defendant: Patrick Wekesa Sitti; Defendant: Josephat Akhonya; Defendant: Pascal Khisa Barasa; Defendant: Wekesa Ndindimu
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 119 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction (ex Parte)
- Outcome
- Temporary injunction granted as prayed in prayer 2 of the application. Costs in the cause.
- Legal Topics
- Injunctive Relief, Trespass, Ownership Dispute, Ex Parte Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Wanyonyi Khaemba
Plaintiff
John Simiyu Kiberenge
Defendant
Charles Wefwafwa
Defendant
Patrick Wekesa Sitti
Defendant
Josephat Akhonya
Defendant
Pascal Khisa Barasa
Defendant
Wekesa Ndindimu
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction (ex Parte)
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from trespassing or interfering with his occupation of the property pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case for the grant of an interlocutory injunction.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by demonstrating that he purchased the property for value, made payment, and obtained vacant possession. The defendants, having been served, failed to respond or contest the application, leaving the plaintiff's evidence unchallenged. The court accepted the plaintiff's apprehension of continued trespass and interference as credible and found that the balance of convenience favored maintaining the status quo by restraining the defendants. Consequently, the court granted the temporary injunction as sought in prayer 2 of the application, pending the hearing and determination of the suit.
Court Disposition
Temporary injunction granted as prayed in prayer 2 of the application. Costs in the cause.
Orders
- A temporary injunction is issued restraining the defendants, their servants and/or agents from trespassing upon, operating a dispensary and/or in any other way interfering with the plaintiff's peaceful occupation, use and possession of the permanent house comprised of a servants quarter and a store situated on L.R....
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Civil Case 119 of 2007
ERASTUS WANYONYI KHAEMBA....................................PLAINTIFF.
VERSUS
JOHN SIMIYU KIBERENGE
CHARLES WEFWAFWA
PATRICK WEKESA SITTI
JOSEPHAT AKHONYA
PASCAL KHISA BARASA
WEKESA NDINDIMU )......................................................DEFENDANTS
R U L I N G.
By a chamber summons application, pursuant to Order XXXIX Rules 1, 2, 3 and 4 of the Civil Procedure rules, the applicant seeks orders:-
(1) That service of this application be dispensed with in the first instance.
(2) That a temporary injunction do issue by restraining the defendant/respondents, their servants and/or agents from trespassing upon, operating a dispensary and/or in any other way interfering with the plaintiff/applicants peaceful occupation, use and possession of a permanent house comprised of a servants quarter and a store situated on L.R. No. 7060/1 Trans Nzoia District pending the hearing and determination of this suit.
(3) That pending inter-partes hearing prayer 2 be granted in the interim.
(4) That costs be provided for.
The application is based on the grounds:-
(a) THAT, the plaintiff/applicant is an innocent purchaser for value.
(b) THAT, the defendants have severally trespassed upon the property.
The application is predicated upon the affidavit of Erastus Wanyonyi Khaemba sworn on the 29th day of July, 2009.
The application was served upon the respondents who failed to file replying affidavit or grounds of opposition. On application, I granted leave to the applicant to proceed ex-parte.
On behalf of the applicant I was urged that on 12th November, 2002 three officials of MESO CO-OPERATIVE SOCIETYapproached him to buy property known as L.R. 7060/1 Trans Nzoia District. Subsequently he entered into agreement of sale exhibited as “EWK” on 12th November, 2002. Upon being given a copy of the valuation of the subject property the applicant made part payment, on instructions of the respondent, to AFC in reduction of the outstanding arrears. Proof of payment is exhibited as “EWK 3”
After payment the applicant was given vacant possession and has been in occupation since then.
It came to pass that the respondents, who are some of the members of the Society claimed that the servant quarters of the subject premises was not sold along with the main premises and is a dispensary for the community.
On 21st July, 2009 a group of people led by the 1st and 2nd defendants rudely trespassed onto the subject premises, broke open the door to the servants quarters and proceeded to set up a dispensary and installed a clinical officer who embarked on his work immediately.
It is the applicant’s case that he is apprehensive that unless restrained by an order of this honourable court the defendants shall continue using the premises as a dispensary.
As I said earlier, the respondents were given ample time to respond to the application and squandered the opportunity. As such I have evidence in support of the application but now none in rebuttal. Accordingly, the applicant’s evidence stands unchallenged.
Accordingly, there shall be orders in terms of prayer 2 of the application. Costs shall be in the cause.
Dated and delivered at Kitale this 29th day of June 2010.
N.R.O. OMBIJA.
JUDGE.