[2012] KEHC 5302 (KLR)
The court found that the applicant's claim for adverse possession established a prima facie case warranting protection of his possession pending trial. The court recognized that damages would not be an adequate remedy if the applicant were evicted, as land is unique and loss would be substantial. However, the court...
Source-derived case information.
- Citation
- [2012] KEHC 5302 (KLR)
- Parties
- Plaintiff: Erick Chepkwony Aengwo; Defendant: Jonathan Rutto Kibiesang
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 138 of 2011
- Procedural Posture
- Interlocutory Injunction / Ruling on Interlocutory Application
- Outcome
- Status quo to be maintained pending hearing and determination of the originating summons. Each party to bear their own costs.
- Legal Topics
- Adverse Possession, Interlocutory Injunctions, Sale of Land, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Chepkwony Aengwo
Plaintiff
Jonathan Rutto Kibiesang
Defendant
Procedural Posture
Interlocutory Injunction / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of interlocutory injunction.
- 2 Whether the applicant is entitled to injunctive relief pending determination of the originating summons for adverse possession.
- 3 Whether damages would be an adequate remedy in the circumstances.
Ratio Decidendi
The court found that the applicant's claim for adverse possession established a prima facie case warranting protection of his possession pending trial. The court recognized that damages would not be an adequate remedy if the applicant were evicted, as land is unique and loss would be substantial. However, the court was cautious about granting injunctive relief to a party not holding title, noting that the full legality of the sale agreement and compliance with statutory requirements would be determined at trial. To balance the interests of both parties, the court ordered that the status quo be maintained until the originating summons is heard and determined, with each party bearing their...
Court Disposition
Status quo to be maintained pending hearing and determination of the originating summons. Each party to bear their own costs.
Orders
- Status quo to be maintained pending hearing and final determination of the originating summons.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
HCC NO. 138 OF 2011
ERICK CHEPKWONY AENGWO…………………….....................……………….PLAINTIFF
VERSUS
JONATHAN RUTTO KIBIESANG………………….......................……………..DEFENDANT
RULING
The application before this court is for an interlocutory injunction under Order 40 Rule (1) of the Civil Procedure Code and also under Sections 3A and 63 of the Civil Procedure Act.
A brief summary of this case is that the Applicant and the Respondent entered into a Sale Agreement on the 4th August, 1978 for the sale of the land in dispute that is BARINGO/TIRIONDONIN/44. The Applicant paid the full purchase price of Kshs 1000/=.
The Applicant now claims to be in adverse possession of the land since that date and has filed an Originating Summons in support of his claim. It is the Applicants contention that the Respondents now wants to evict the Applicant from the disputed land and that is the reason the Applicant seeks injunctive orders.
The Respondent avers that he became the registered proprietor of the land in dispute on the 22nd November 1994 and a copy of the Green Card is annexed to the Originating Summons.
At the hearing of the application, Counsel for the Applicant chose to rely on written submissions where as Counsel for the Respondent made oral submissions.
I have read the Applicants written submissions and heard oral submissions made by the Respondents Counsel.
I find that there are three (3) issues for determination:
(i)The agreement for sale
(ii)Adverse possession
(iii)And whether a prima facie case has been made to merit injunctive orders.
I find that the cause of action arises from a claim for adverse possession. I am satisfied that this establishes a prima facie case. When dealing with matters pertaining to land, I find that an award for damages is never an adequate remedy and if the Applicant is evicted he will certainly suffer substantial loss. Nevertheless, this court is averse to granting injunctive orders to persons who are not seized of Title.
The full context of the legality of the contract, the Sale Agreement and whether consents were obtained can be canvassed at full trial at a later date.
The ruling of the court is that there be a Status Quo to be maintained pending the hearing and final determination of the Originating Summons. Each party to bear their own costs.
Dated and Delivered at Eldoret this 24th day of January 2012.
A.MSHILA
JUDGE