[2017] KEELC 2251 (KLR)
The court found that the Plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction. The Defendant presented credible evidence of a transaction involving the Suit Property, including executed transfer documents and proof of payment, indicating a legitimate claim to a portion of the...
Source-derived case information.
- Citation
- [2017] KEELC 2251 (KLR)
- Parties
- Plaintiff: Fredrick Matu Magondu; Defendant: Gerald T. Kanying
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 135 of 2017
- Procedural Posture
- Interlocutory Application / Ruling on Application for Injunction
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Injunctive Relief, Ownership Dispute, Status Quo Orders, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Matu Magondu
Plaintiff
Gerald T. Kanying
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of an interlocutory injunction against the Defendant.
- 2 Whether the Plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the Plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction. The Defendant presented credible evidence of a transaction involving the Suit Property, including executed transfer documents and proof of payment, indicating a legitimate claim to a portion of the property. Given the existence of serious disputes of fact regarding ownership and occupation, the court held that it could not conclusively determine the parties' rights at the interlocutory stage. Consequently, the Plaintiff's application for an injunction was dismissed, and the parties were ordered to maintain the status quo pending the hearing and determination of the main...
Court Disposition
application dismissed
Orders
- The Plaintiff's application dated 24th February 2017 is dismissed with costs to the Defendant.
- Both parties are to maintain the status quo in respect of the Suit Property until the case is heard and determined.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 135 OF 2017
FREDRICK MATU MAGONDU………… PLAINTIFF
VERSUS
GERALD T. KANYING.........................DEFENDANT
RULING
The Plaintiff filed this suit on 24th February 2017 seeking a permanent injunction to restrain the Defendant from trespassing or interfering with the Plaintiff’s parcel of land being L.R. No. Nairobi/ Block 110/397 situated in Thome Estate, Nairobi (“the Suit Property”). He also filed the application dated 24th February 2017 seeking an injunction to restrain the Defendant from entering, trespassing or in any way interfering with the Suit Property.
The Plaintiff bought the Suit Property in 1991 and was issued a title deed over the Suit Property on 16th April 1992. He claims that the Defendant has without any colour of right trespassed on part of the Suit Property and forcibly occupied it and that if the orders he seeks are not granted he stands to suffer irreparable loss and damage. The Plaintiff swore the affidavit in support of the application and a supplementary affidavit.
The Defendant filed his defence and counterclaim in which he maintains that he is the legitimate owner of half share of the Suit Property which he bought from the Plaintiff and that he has been in occupation of this portion of the Suit Property since September 1996. The Defendant filed a Replying Affidavit and a further affidavit in opposition to the application for injunctive relief.
The Defendant has annexed documents showing that he entered into a transaction with the Plaintiff over the Suit Property and that he made payments to the Plaintiff through the firm of Nyaencha Waichari & Company Advocates in respect of the Suit Property. He has also attached a copy of the transfer of land over the Suit Property which indicates that the Plaintiff was transferring the Suit Property to himself and the Defendant. The transfer of land bears several stamps from the lands office as well as the Collector of Stamp Duties dated 13. 9.2013, 25. 9.2013 and 11. 08. 2015. It has both the Plaintiff’s photographs and the Defendant’s photo and appears to have been executed by the Plaintiff and Defendant.
The Defendant has also produced copies of a draft memorandum and articles of association in respect of Excel Ventures Limited which was being incorporated by the Plaintiff, Defendant and their respective spouses in 1996. The Suit Property was to be transferred to this company.
This being an interlocutory application, the court is only required to inquire whether the Plaintiff deserves the injunctive relief he seeks against the Defendant. The Plaintiff has to establish a prima facie case and show that he will suffer irreparable harm if the orders are not granted.
The court is not satisfied that the Plaintiff has a prima facie case against the Defendant for the court to grant the orders the Plaintiff seeks. The application dated 24th February 2017 is dismissed with costs to the Defendant.
In the interest of justice and to preserve the Suit Property, both the Defendant and the Plaintiff will maintain the status quo until the case is heard and determined.
Parties are directed to go for pretrial conference within 21 days and thereafter set the matter down for hearing so that this dispute can be determined quickly.
Dated and delivered at Nairobi this 11th day of July 2017.
K. BOR
JUDGE
In the presence of: -
Ms. Wambugu holding brief for Mungai for the Plaintiff/Applicant
Moindi holding brief for Mogire for the Defendant/Respondent
Mr. V. Owuor- Court Assistant