[2016] KEELC 544 (KLR)
The court found that both the Plaintiff and Vital Bioenergy (represented by the 1st to 4th Defendants) have valid leases over distinct portions of L.R. No.14248, as evidenced by filed survey reports and GPS coordinates. The Plaintiff demonstrated a real threat to its possession by the Defendants' actions. Given the...
Source-derived case information.
- Citation
- [2016] KEELC 544 (KLR)
- Parties
- Plaintiff: Fresco Bushlands (K) Limited; Defendant: Warsame Mohamed Issak; Defendant: Mohammed Yusuf Horar; Defendant: Mohamed Ali Mahat; Defendant: Naste Daud; Defendant: Agricultural Development Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Injunctions, Land Leases, Eviction, Property Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fresco Bushlands (K) Limited
Plaintiff
Warsame Mohamed Issak
Defendant
Mohammed Yusuf Horar
Defendant
Mohamed Ali Mahat
Defendant
Naste Daud
Defendant
Agricultural Development Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiff is entitled to an interlocutory injunction restraining the Defendants from interfering with its possession of the leased property pending determination of the suit.
- 2 Whether there is a real threat of eviction or interference by the Defendants with the Plaintiff's rights over the suit property.
Ratio Decidendi
The court found that both the Plaintiff and Vital Bioenergy (represented by the 1st to 4th Defendants) have valid leases over distinct portions of L.R. No.14248, as evidenced by filed survey reports and GPS coordinates. The Plaintiff demonstrated a real threat to its possession by the Defendants' actions. Given the clear demarcation of boundaries and the need to preserve the status quo pending the suit's determination, the court held that the Plaintiff met the threshold for an interlocutory injunction. The application was allowed as prayed to prevent any interference with the Plaintiff's rights over its leased property until the main suit is heard and determined.
Court Disposition
application allowed
Orders
- An order of injunction is issued restraining the 1st to 4th Defendants, their agents, servants, or any person acting on their behalf from evicting or threatening the Plaintiff's agents from the structures or houses on L.R. No.14248, or demolishing the said houses, or otherwise interfering with the Plaintiff's rights...
- Costs to be provided for.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 5 OF 2015
FRESCO BUSHLANDS (K) LIMITED................................................PLAINTIFF
=VERSUS=
1. WARSAME MOHAMED ISSAK
2. MOHAMMED YUSUF HORAR
3. MOHAMED ALI MAHAT
4. NASTE DAUD
5. AGRICULTURAL DEVELOPMENT CORPORATION...........DEFENDANTS
R U L I N G
1. In its Application dated 25th February, 2016, the Plaintiff is seeking for the following orders:-
(a) THAT an order of injunction do issue restraining the 1st to 4th Defendants by themselves or their hirelings, employees, servants, agents and/or any person acting on their behalf from evicting, threatening the agents of the Plaintiff from the structures or houses on land parcel number Reference Number 14248 situate within Kilifi County or demolishing the said houses or in any other way acting in a manner that may negatively affect the Plaintiff's rights and/or interests in the said structures/house pending the hearing and determination of the suit.
(b) THAT costs be provided for.
2. The Application is premised on the grounds that the Plaintiff is a lessee of 95,000 acres of L.R. No.14248 situate within Kilifi County; that the Plaintiff has structures within the suit property and that the 1st to the 4th Defendants agents, hirelings and servants went to the said structures and threatened the Plaintiff's agents.
3. In response, the 3rd Respondent deponed that indeed the Plaintiff has leased 95,000 acres of land from the 5th Defendant; that from the survey plan, it is clear that there exists distinct borders between the Plaintiff's land and the Defendants' and that him, together with the 1st and 2nd Defendants have been appointed as the caretakers of Vital Bioenergy who have also leased a portion of L.R.No.14248.
4. The advocates appeared before me on 13th April, 2016 and made oral submissions which I have considered.
5. There is no dispute that both the Plaintiff and the 1st to 4th Defendants' principal, Vital Bioenergy, have leased land from the 5th Defendant.
6. Indeed, both parties have filed the survey report showing the acreage and the coordinates representing the land they have leased from the 5th Defendant.
7. The GPS coordinates “UTM ARC 1960” annexed on the affidavits shows that the Plaintiff has leased 95,000 acres while Vital Bioenergy has leased 70,000 acres. The two parties' parcels of land abutt each other.
8. Considering that the two parcels of land have clearly marked GPS coordinates, I would not expect any of the parties to encroach on the land of the other.
9. It is for this reason that I allow the Application dated 25th February, 2016 as prayed.
Dated, signed and delivered in Malindi this 16thday of September,2016.
O. A. Angote
Judge