[2017] KEELC 1716 (KLR)
The court found that the applicant had demonstrated a prima facie case with a probability of success regarding land parcel No. MARAMA/INAYA/984, as evidenced by the title deed annexed to the application. The respondent failed to oppose the application or present any evidence to the contrary. The court noted that the...
Source-derived case information.
- Citation
- [2017] KEELC 1716 (KLR)
- Parties
- Applicant: George Namawa Angaya; Respondent: Enock George Mukabana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 208 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in part
- Judges
- NA Matheka
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Land Title, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Namawa Angaya
Applicant
Enock George Mukabana
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success regarding land parcel No. MARAMA/INAYA/984.
- 2 Whether the applicant will suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favours granting the injunction.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie case with a probability of success regarding land parcel No. MARAMA/INAYA/984, as evidenced by the title deed annexed to the application. The respondent failed to oppose the application or present any evidence to the contrary. The court noted that the applicant would suffer loss if the injunction was not granted, and that the balance of convenience favoured the applicant. However, the court clarified that land parcel No. MARAMA/INAYA/1010 did not belong to the applicant, and thus the injunction was limited to parcel No. MARAMA/INAYA/984. The application was therefore granted in respect of this parcel only.
Court Disposition
interlocutory injunction granted in part
Orders
- Pending the hearing and determination of the suit, the respondent, his agents, servants, proxies and any other person claiming through him are restrained by an order of injunction from interfering, working, developing and/or ploughing land parcel No. MARAMA/INAYA/984.
- The costs of this application be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT ANDLAND COURT AT KAKAMEGA
ELC NO.208 OF 2017
GEORGE NAMAWA ANGAYA :::::::::::::::::::::::PLAINTIFF/APPLICANT
VERSUS
ENOCK GEORGE MUKABANA ::::::::::: DEFENDANT/RESPONDENT
RULING
This application is dated 22nd June 2017 and is brought under Order 40 Rule 1 and 2 of the Civil Procedure Rules and seeks the following orders;
1. THAT the present application is urgent and ought to be heard exparte in the 1st instance.
2. THAT pending the hearing and determination of this application the respondent, his agents, servants, proxies and or any other person claiming through him be restrained by an order of injunction from interfering, working, developing and or ploughing land parcels Nos. MARAMA/INAYA/1010 and MARAMA/INAYA/984.
3. THAT upon prayer (2) above being granted the interim order be deemed to remain in force until the hearing and determination of this application.
4. THAT the costs hereof be provided for.
The application is supported affidavit of GeorgeNamawaAngaya, the applicant and the following grounds; the applicant is the sole registered owner of land parcels Nos. MARAMA/INAYA/1010 and MARAMA/INAYA/984. The respondent has remained adamant and has continued to develop and interfere with the applicant’s parcel of land. The respondent has his own parcel of land which is land parcel No. MARAMA/INAYA/1366 and has no right whatsoever to interfere with land parcels No. MARAMA/INAYA/984 which belongs to the applicant. The respondent has malicious intentions as he has gone ahead to uproot the beacons erected and as such gone against the spirit of fair play.
The applicant submitted that he is the sole registered owner of land parcels Nos. MARAMA/INAYA/1010 and MARAMA/INAYA/984(Annexed and marked “GN-1a & b” are copies of land title deeds). The respondent has adamantly continued working, interfering with land parcels Nos. MARAMA/INAYA/1010 and MARAMA/INAYA/984. This is the only investment the applicant has and he stands to suffer irreparable loss.That efforts by the local administration to resolve the stalemate have been futile. The respondent is ploughing and is in the process of developing and/or extending the kiosk erected on his land parcel without his consent and or knowledge. The respondent was served and failed to attend court or file any papers and the matter proceeded exparte.
This court has considered the plaintiff/applicant’s submissions and the supporting affidavit therein. The application being one that seeks injunctions, has to be considered within the principles set out in the case of GIELLA VS CASSMAN BROWN & CO. LTD 1973 E.A 358 and which are:-
1. The applicant must show a prima facie case with a probability of success at the trial
2. The applicant must show that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages and,
3. If in doubt, the Court will decide the application on a balance of convenience.
It must also be added that an interlocutory injunction is an equitable relief and the Court may decline to grant it if it can be shown that the applicant’s conduct pertinent to the subject matter of the suit does not meet the approval of a Court of equity.
The applicant stated that he is the sole registered owner of land parcels Nos. MARAMA/INAYA/1010 and MARAMA/INAYA/984. (Annexed and marked “GN-1a & b” are copies of land title deeds). He submitted that the respondent has adamantly continued working, interfering with land parcels Nos. MARAMA/INAYA/1010 and MARAMA/INAYA/984. The respondent is ploughing and is in the process of developing and or extending the kiosk erected on his land parcel without his consent and or knowledge. This application has not been opposed. On perusal of the said annexturesGN-1a & b” which are copies of land title deeds I find that the applicant is the registered owner ofLand parcel No. MARAMA/INAYA/984. Land parcel No. MARAMA/INAYA/1010 seems to belong to another person namely Edward Amwayi Abraham who is not a party to this suit. I find that the applicant has shown a prima facie case with a probability of success at the trial as regards Land parcel No. MARAMA/INAYA/984. He has also shown that unless the order is granted, he will suffer loss. I find this application has merit and I grant the following orders;
1. THAT pending the hearing and determination of this suit the respondent, his agents, servants, proxies and or any other person claiming through him be restrained by an order of injunction from interfering, working, developing and or ploughing land parcel No. MARAMA/INAYA/984.
2. That the costs of this application be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS26TH DAY OF SEPTEMBER 2017.
N.A. MATHEKA
JUDGE