[2021] KEELC 2834 (KLR)
The court found that, despite the applicant's and his advocate's absence at the ex parte hearing and the irregularity of not filing the application in the primary file, the interests of justice warranted granting interim protection. The applicant's allegations of trespass, destruction of property, and threat of...
Source-derived case information.
- Citation
- [2021] KEELC 2834 (KLR)
- Parties
- Applicant: Gurach Tadi Jaldo; Respondent: Halkano Galgallo Guyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E017 of 2021
- Procedural Posture
- Civil Case / Interlocutory Application for Interim Injunction
- Outcome
- Interim injunction granted for 14 days pending inter partes hearing.
- Legal Topics
- Adverse Possession, Interim Injunctions, Limitation of Actions, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gurach Tadi Jaldo
Applicant
Halkano Galgallo Guyo
Respondent
Procedural Posture
Civil Case / Interlocutory Application for Interim Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of an interim injunction restraining the respondent from dealing with the suit property pending hearing and determination of the application and suit.
- 2 Whether the applicant will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the interim orders.
Ratio Decidendi
The court found that, despite the applicant's and his advocate's absence at the ex parte hearing and the irregularity of not filing the application in the primary file, the interests of justice warranted granting interim protection. The applicant's allegations of trespass, destruction of property, and threat of eviction, if unrestrained, could result in irreparable harm. Therefore, the court exercised its discretion to grant the interim injunction sought in prayer 2 of the application, but limited its duration to 14 days pending inter partes hearing, and directed proper service of the application on the respondent.
Court Disposition
Interim injunction granted for 14 days pending inter partes hearing.
Orders
- Prayer 2 of the application is granted for only 14 days pending hearing of the application by the ELC Court at Meru on 6th July, 2021.
- The applicant is directed to properly serve the application upon the respondent within 7 days of the ruling.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
MERU ELC CIVIL CASE NO. E017 OF 2021 (OS)
IN THE MATTER OF CLAIM OF TITLE TO LAND BY ADVERSE POSSESSION
AND
IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22 SECTION 7, 17, 37 AND 38
BETWEEN
GURACH TADI JALDO....................................................................................APPLICANT
AND
HALKANO GALGALLO GUYO.................................................................RESPONDENT
RULING
1. This application states that it has been filed under Order 40 Rule 1 (a) (b), Rule 2 (1) (2), Rule 4(1) of the Civil Procedure Rules, section 3A and 63 (e) of the Civil Procedure Act and all other enabling provisions of the law)
2. The application seeks the following orders:
1. That this application be certified urgent and service of the same upon the Respondent be dispensed with in the first instance.
2. That the Respondent be and is hereby by way of an interim injunction be restrained, whether by himself or by his servants, agents, employees, invitees and or otherwise whatsoever from disposing, and or partitioning, and or alienating, and or erecting, and/or any constructing of any structure on the suit property Land Reference Number Marsabit/Mountain/535 pending the hearing and determination of the instant application.
3. That the Defendant/Respondents be and is hereby by way of an interim injunction be restrained, whether by himself or by his servants, agents, employees, invitees and or otherwise whatsoever from disposing, and or evicting, or in any manner dealing, and or wasting, and or partitioning, and or alienating, or erecting, and / or any constructing of any structure on the suit property Land Reference Number Marsabit/Mountain/535 pending the hearing and determination of this suit.
4. That OCS Marsabit Police Station to ensure compliance of these orders.
5. That costs of this application be provided for.
3. The application is supported by the affidavit of Gurach Tadi Jaldo, the applicant and has the following grounds:-
a) That on the 15th day of June, 2021 at about 11. 00am the Respondent in company of his agents without any colour of right or notice or any justifiable cause trespassed to the Applicant’s residential home situated on the suit land Marsabit/Mountain/535 assaulted him and maliciously destroyed part of the house and threatened to evict him.
b) That the Respondent further threatened to evict and dispose off the suit land to a third party with total disregard of the Applicant’s interest.
c) That the Applicant will suffer irreparably if this application is not certified urgent as he faces destitution unless an order is issued by this honourable Court prohibiting further dealings and disposition of the suit property aforesaid pending the hearing and determination of this application and suit.
d) That the Respondent temporarily entered into the suit property Marsasbit/Mountain/535 and destroyed part of the Applicant’s residential house constructed thereon with clear intention of evicting the Applicant from the suit land with total disregard of the applicant’s interest.
4. The applicant and his lawyer did not come to court when the application was slated for exparte hearing. I cannot understand why the applicant did not file this application in the primary file Meru ELC Civil Case No. E017 of 2021 (OS), unless he has something to hide.
5. Nevertheless, in the greater interest of Justice, Prayer 2 in the application is granted for only 14 days pending interpartes hearing of the application.
6. In the circumstances, the following orders are issued:
a) Prayer 2 is granted for only 14 days pending hearing of the application by the ELC Court at Meru on 6th July, 2021.
b) The applicant is directed to properly serve the application upon the respondent within 7 days of today.
Written and delivered in open Court at Chuka this 22nd day of June, 2021 in the presence of:
CA: Ndegwa
Applicant not in court
P. M. NJOROGE,
JUDGE.