[2017] KEELC 1767 (KLR)
The court found that the plaintiff had demonstrated a sufficient proprietary interest in the suit property through documentary evidence, including the Land Certificate, Certificate of Official Search, and Certificate of Confirmation of Grant. The defendants, having been served, did not oppose the application, and...
Source-derived case information.
- Citation
- [2017] KEELC 1767 (KLR)
- Parties
- Plaintiff: Esther J. Rotich (suing as the legal administrator of the estate of Fredrick Kosgei Rotich); Defendant: County Government of Baringo; Defendant: Trustees Full Gospel Churches of Kenya; Defendant: John Kipyamat; Defendant: Musa Tuno; Defendant: Richard Lasoi; Defendant: Reuben Kipsumbai Rono; Defendant: Joseph Chepkonga; Defendant: Bundotich Kandie; Defendant: Jeremiah Kurgat
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 196 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted in favor of the plaintiff; costs to the plaintiff
- Judges
- DO Ohungo
- Legal Topics
- Interlocutory Injunctions, Proprietary Interest, Trespass, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther J. Rotich (suing as the legal administrator of the estate of Fredrick Kosgei Rotich)
Plaintiff
County Government of Baringo
Defendant
Trustees Full Gospel Churches of Kenya
Defendant
John Kipyamat
Defendant
Musa Tuno
Defendant
Richard Lasoi
Defendant
Reuben Kipsumbai Rono
Defendant
Joseph Chepkonga
Defendant
Bundotich Kandie
Defendant
Jeremiah Kurgat
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant of an injunction to restrain the defendants from interfering with the suit property.
Ratio Decidendi
The court found that the plaintiff had demonstrated a sufficient proprietary interest in the suit property through documentary evidence, including the Land Certificate, Certificate of Official Search, and Certificate of Confirmation of Grant. The defendants, having been served, did not oppose the application, and the plaintiff's evidence that the defendants constructed on the land without her consent was unchallenged. The court held that the plaintiff had established a prima facie case with a probability of success and that damages would not be an adequate remedy for the infringement of her proprietary rights. Consequently, the court granted a temporary injunction restraining the...
Court Disposition
injunction granted in favor of the plaintiff; costs to the plaintiff
Orders
- A temporary injunction is granted restraining the defendants, their agents and/or sympathizers from laying a claim to, trespassing upon, appropriating, subdividing, allocating, encroaching or in any other way interfering with the peaceful and quiet use, possession and enjoyment by the plaintiff of the parcel of land...
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 196 OF 2017
ESTHER J. ROTICH (suing as the legal administrator
of the estate of Fredrick KosgeiRotich)...............................PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF BARINGO..........................1STDEFENDANT
TRUSTEES FULL GOSPEL CHURCHES OF KENYA....2ND DEFENDANT
JOHN KIPYAMAT..............................................................3RD DEFENDANT
MUSA TUNO......................................................................4TH DEFENDANT
RICHARD LASOI...............................................................5TH DEFENDANT
REUBEN KIPSUMBAI RONO...........................................6TH DEFENDANT
JOSEPH CHEPKONGA....................................................7TH DEFENDANT
BUNDOTICH KANDIE.......................................................8TH DEFENDANT
JEREMIAH KURGAT.........................................................9TH DEFENDANT
RULING
1. This ruling is in respect of plaintiff’s Notice of Motion dated 10th May 2017. The application is bought under Order 40 Rule 2 of the Civil Procedure Rules. The orders sought in the application are:
i. Spent
ii. Spent
iii. THAT pending the hearing and determination of this suit, the honorable court be pleased to grant a temporary injunction restraining the defendants either by themselves, agents and/or sympathizers from laying a claim to, trespassing, appropriating, subdividing, allocating encroaching or in any other way interfering with the peaceful and quiet use, possession and enjoyment by the plaintiff of the parcel of Land known as Lembus/Kiptuim/182.
iv. Cost of this application be provided for.
2. The application is supported by an affidavit sworn by the plaintiff. The plaintiff deposes that she is the administrator of the estate of Fredrick KosgeiRotich, her deceased husband, and that the parcel of Land known as Lembus/Kiptuim/182 is registered in the name of the deceased and therefore comprises part of the estate. She exhibited copies of the Land Certificate, Certificate of Official Search as at 4th May 2017 and Certificate of Confirmation of Grant. The plaintiff further deposes that the defendants have constructed on the parcel of land without her consent. The plaintiff therefore urges the court to grant the application.
3. The application has not been opposed by the defendants. When the matter came up for inter parte hearing, the court was satisfied that the defendants had been served. Consequently, the hearing proceeded ex parte.
4. I have considered the application. In an application such as the present one, for the application to be allowed the applicant must establish a prima facie case with a probability of success. Even where a prima facie case is established, an injunction ought not to issue if damages can adequately compensate the applicant. Finally, if the court is in doubt as to the answer of the above two tests then the court can determine the matter on a balance of convenience. These principles were enunciated in the case of Giella –vs- Cassman Brown & Co. Ltd [1973] E.A 358. From the copies of the Land Certificate, Certificate of Official Search and Certificate of Confirmation of Grant exhibited in this matter, I am satisfied that the plaintiff has demonstrated a sufficient proprietary interest in the suit property.
5. Similarly, from the unchallenged evidence placed on record by the plaintiff, I am persuaded that the defendants have constructed a building on the suit property without the consent of the plaintiff. In the circumstances, the plaintiff has established a prima facie case with a probability of success. I do not think that damages can adequately compensate the plaintiff.
6. In the end, I grant an injunction restraining the defendants either by themselves, agents and/or sympathizers from laying a claim to, trespassing upon, appropriating, subdividing, allocating encroaching or in any other way interfering with the peaceful and quiet use, possession and enjoyment by the plaintiff of the parcel of land known as Lembus/Kiptuim/182.
7. Costs to the plaintiff.
Dated, signed and delivered in open court at Nakuru this 27th day of September 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Ikua for the plaintiff/applicant
No appearance for the defendants/respondents
Court Assistant: Gichaba