[2021] KEELC 4418 (KLR)
The court found that the applicant had established a prima facie case with a likelihood of success as it holds title to the suit properties. The court further held that the applicant had demonstrated that it would suffer irreparable harm if the injunction was not granted, given the investments made on the property...
Source-derived case information.
- Citation
- [2021] KEELC 4418 (KLR)
- Parties
- Plaintiff: Hashi Energy Ltd previously T/a Hashi Empex Ltd; Defendant: County Government of Kisumu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E15 of 2020
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Application for Temporary Injunction
- Outcome
- temporary injunction granted
- Judges
- A Ombwayo
- Legal Topics
- Temporary Injunctions, Prima Facie Case, Irreparable Harm, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hashi Energy Ltd previously T/a Hashi Empex Ltd
Plaintiff
County Government of Kisumu
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of a temporary injunction.
- 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 injunction.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a likelihood of success as it holds title to the suit properties. The court further held that the applicant had demonstrated that it would suffer irreparable harm if the injunction was not granted, given the investments made on the property and the risk of eviction or demolition. The balance of convenience also favoured the applicant, as it would be more inconvenienced by denial of the injunction. The respondent's failure to contest the application further strengthened the applicant's case. Accordingly, the court granted a temporary injunction restraining the defendant from evicting or demolishing the applicant's...
Court Disposition
temporary injunction granted
Orders
- A temporary injunction is granted restraining the defendant, its agents, servants, employees and/or anybody claiming through them from evicting and/or demolishing the structures situated on the plaintiff’s properties described as KISUMU MUNICIPALITY/BLOCK 434 to 459 and/or interfering with the plaintiff's operation...
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC NO. E15 OF 2020
HASHI ENERGY LTD previously T/a HASHI EMPEX LTD........PLAINTIFF
-VERSUS-
COUNTY GOVERNMENT OF KISUMU.....................................DEFENDANT
RULING
On the 21/12/2020, this court certified the application herein as urgent and granted orders that the respondent to file and serve reply within seven (7) days. The applicant to file and serve submissions within seven (7) days of service. The Respondent to file and serve submissions within (7) days. Ruling on the 4th February 2021.
In the meantime status quo be maintained on the ground in terms of prayer 2 of the Notice of motion dated 17th December 2020 thus that pending the hearing and Determination of the Application interparte, an Order of temporary injunction restraining the Defendant, its agents, servants employees and/or anybody claiming through them howsoever form evicting and/or demolishing the structures that are situated on plaintiff’s pieces of land and or properties that are described as or situated on KISUMU MUNICIPALITY/BLOCK 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458 AND 459 and/or interfere with its operation and peaceful occupation of these properties in any manner was granted.
The Respondents have not complied with the orders of the court despite being served. The allegations by the applicant remain uncontested.
It is a trite law that there are those conditions to be met before an interlocutory injunction can be granted as exposited in Giella v Cassman Brown Co. Ltd 1973 E.A. 358.
“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”
I have considered the application and the submissions on record and do find that the applicant has established a prima facie case with a likelihood of success as they have title to the suit Properties.
Moreover, the applicant has invested on the property and therefore if injunction is not granted he is likely to suffer irreparable damage that may not be adequately compensated. Lastly, that the applicant is likely to be more inconvenienced if injunction is not granted.
Ultimately, I do grant a temporary injunction restraining the Defendant, its agents, servants employees and/or anybody claiming through them howsoever form evicting and/or demolishing the structures that are situated on plaintiff’s pieces of land and or properties that are described as or situated on KISUMU MUNICIPALITY/BLOCK 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458 AND 459 and/or interfere with its operation and peaceful occupation of these properties in any manner pending the hearing of the suit. Costs in the cause.
DATED AT KISUMU THIS 4th DAY OF FEBRUARY, 2021
ANTONY OMBWAYO
JUDGE
This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.
ANTONY OMBWAYO
JUDGE