[2009] KEHC 3821 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit property, had established a prima facie case for the grant of an interlocutory injunction. The defendant failed to file any response or justification for his actions, and the evidence showed he had trespassed and commenced construction on...
Source-derived case information.
- Citation
- [2009] KEHC 3821 (KLR)
- Parties
- Plaintiff: Gunyama Andrew Gunyama; Defendant: Michael Lulumbi Musambayi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 84 of 2008
- Procedural Posture
- Interlocutory Injunction / Ruling on Application for Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Legal Topics
- Interlocutory Injunctions, Registered Land Ownership, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gunyama Andrew Gunyama
Plaintiff
Michael Lulumbi Musambayi
Defendant
Procedural Posture
Interlocutory Injunction / Ruling on Application for Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the defendant has any lawful authority to enter or construct on the suit property.
- 3 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit property, had established a prima facie case for the grant of an interlocutory injunction. The defendant failed to file any response or justification for his actions, and the evidence showed he had trespassed and commenced construction on the land without authority. The court held that allowing the defendant to continue would alter the character of the property and cause irreparable harm to the plaintiff. Therefore, the plaintiff was entitled to the orders sought, restraining the defendant from dealing with the suit property until the suit is heard and determined.
Court Disposition
interlocutory injunction granted
Orders
- The defendant is restrained from alienating, laying claim to, trespassing onto, utilizing, developing, carrying out any works on, constructing on or in any other manner dealing with L.R. No. ISUKHA/SHIRERE/2725 until the suit is heard and determined.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE 84 OF 2008
GUNYAMA ANDREW GUNYAMA :::::::::::::::::::::: PLAINTIFF
V E R S U S
MICHAEL LULUMBI MUSAMBAYI :::::::::::::::::: DEFENDANT
R U L I N G
The application before me is for an interlocutory injunction, to restrain the defendant from alienating, laying claim to, trespassing onto, utilizing, developing, carrying out any works on, constructing on or in any other manner dealing with the suit property L. R. NO. ISUKHA/SHIRERE/2725, until the suit herein is heard and determined.
The plaintiff asserts that he is the registered owner of the suit property. He produced a copy of the title deed for the said suit property.
As the defendant did not file any replying affidavit, and in the light of the said title deed, I do find, on a prima facie basis, that the plaintiff is the registered proprietor of the suit property.
Regardless of the fact that the plaintiff was the registered owner of the suit property, the defendant is said to have trespassed thereon, in October 2008.
Again, the defendant did not deny that assertion, nor did he take any steps to justify to this court, his actions of moving onto the suit property. In the absence of any justification by the defendant, I hold, on a prima facie basis, that the defendant has no lawful authority to enter onto the suit property, or to do anything thereon..
In effect, I find and hold that the plaintiff has established a prima facie case against the defendant, and that the said case has a probability of success.
As the defendant has started constructing a structure on the suit land, without the authority of the registered proprietor, I find that if the said construction, or any other construction by the defendant is allowed to proceed, the same would alter the character of the suit property, and would therefore cause the plaintiff to suffer irreparable loss and damage.
In the event, the application before me is well merited. I therefore grant orders as prayed in the plaintiff’s application dated 5th November 2008.
Dated, Signed and Delivered at Kakamega, this 5th day of February 2009
FRED A. OCHIENG
J U D G E