[2019] KEHC 4017 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case with a probability of success by providing uncontroverted evidence that the suit land was registered in the name of the deceased. The respondents failed to justify their presence on the land and did not oppose the application. The court held...
Source-derived case information.
- Citation
- [2019] KEHC 4017 (KLR)
- Parties
- Plaintiff: Eunice Simon Mbilu; Plaintiff: Marie Kasyoka Mbilu; Defendant: Ali Nassor; Defendant: Killian Mwandori; Defendant: Richard Kisenga; Defendant: Raymond Charo; Defendant: Patrick Mwarome; Defendant: The Land Registrar/County Land Registrar, Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 108 of 2019
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- injunction granted
- Legal Topics
- Injunctive Relief, Ownership Dispute, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Simon Mbilu
Plaintiff
Marie Kasyoka Mbilu
Plaintiff
Ali Nassor
Defendant
Killian Mwandori
Defendant
Richard Kisenga
Defendant
Raymond Charo
Defendant
Patrick Mwarome
Defendant
The Land Registrar/County Land Registrar, Mombasa
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case with a probability of success to warrant the grant of an injunction.
- 2 Whether the plaintiffs will suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case with a probability of success by providing uncontroverted evidence that the suit land was registered in the name of the deceased. The respondents failed to justify their presence on the land and did not oppose the application. The court held that there was a real risk of irreparable loss to the estate if the injunction was not granted, as the property could be wasted. The balance of convenience also favoured the preservation of the suit property. Consequently, the court granted the interlocutory injunction restraining the defendants and any persons claiming through them from interfering with the suit land pending the...
Court Disposition
injunction granted
Orders
- Pending the hearing and determination of the suit, the defendants/respondents and/or their servants/agents, or any person claiming through them, are restrained by injunction from making any structure, cutting down any tree or vegetation, or altering the character of the suit land.
- The applicants are awarded the costs of the application.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
CIVIL SUIT NO 108 OF 2019
EUNICE SIMON MBILU
MARIE KASYOKA MBILU.............................................PLAINTIFFS
VERSUS
ALI NASSOR
KILLIAN MWANDORI
RICHARD KISENGA
RAYMOND CHARO
PATRICK MWAROME
THE LAND REGISTRAR/COUNTY
LAND REGISTRAR, MOMBASA............................DEFENDANTS
RULING
(Application for injunction; plaintiffs displaying prima facie evidence of ownership of the suit land; respondents not filing anything to oppose the motion; application for injunction allowed)
1. This suit was commenced through a plaint which was filed on 18 June 2019. Together with the plaint, the plaintiffs filed an application for injunction seeking to restrain the defendants from trespassing, cutting down trees, occupying, living, developing, constructing, or in any other way interfering with the land parcel Title Number 628/I/MN (Original No.1110/9) situated in Kongowea, Maweni, Mombasa County, pending the hearing and determination of this suit. It is that application which is the subject of this ruling.
2. When the matter first came before court ex-parte on 18 June 2019, the court ordered that the defendants/respondents be served by way of advertisement and an appropriate advertisement was placed in the Daily Nation newspaper of 6 August 2019. So far, the respondents have not entered appearance and have not responded to the application for injunction.
3. The case of the plaintiffs is that the suit land was owned by the late Simon Mbilu, who died on 30 April 2017. It is averred that following his death, the respondents and other persons invaded the suit property and purported to subdivide it amongst themselves, and also cut down trees and vegetation on the suit property. It is mentioned that in order to sanitize their illegal activities, the respondents filed a suit, Mombasa ELC No. 28 of 2018, against the deceased, when he was already dead and managed to obtain an injunction. The said suit was later struck out as being incompetent for it was instituted against a person who was deceased. The applicants aver that unless the injunction is granted, the estate of the deceased will suffer loss for the suit land will be wasted.
4. As I mentioned earlier, there is no response to this application. The material that I have is therefore uncontroverted. The applicants have displayed copies of documents which show, prima facie, that the suit land was registered in the name of the deceased. The respondents have not justified their presence in the suit land and I am of the view that the applicants have therefore demonstrated a prima facie case with a probability of success. It is apparent that if an injunction is not granted, the respondents may proceed to waste the property and this may cause the applicants irreparable loss. Even if I was to consider the balance of convenience, it tilts towards maintaining and preserving the suit property.
5. I am thus persuaded to grant the order of injunction and I now make the following orders :
(i) That pending the hearing and determination of this suit, the defendants/respondents and/or their servants/agents, or any person claiming through them, and/or any other person who may be in possession of the suit land or who may take possession subsequently, are hereby ordered by an order of injunction, not to make any structure whether permanent , semi-permanent or temporary, and not to cut down any tree or any vegetation, and not to alter in any other way the character of the suit land.
(ii) The applicants will have the costs of this application.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 25TH DAY OF SEPTEMBER 2019.
________________________
MUNYAO SILA
JUDGE.
IN THE PRESENCE OF:
No appearance on the part of M/s E.K Mutua & Co. Advocates for the applicants
No appearance for the respondents.
Court Assistant; Mr. Koitamet.
MUNYAO S.
JUDGE.