[2018] KEELC 2496 (KLR)
The court found that the plaintiffs had established a prima facie case as required by the principles in Giella v Cassman Brown. The issues raised in the application were contested and could only be determined conclusively at a full hearing where evidence would be adduced and witnesses cross-examined. The court...
Source-derived case information.
- Citation
- [2018] KEELC 2496 (KLR)
- Parties
- Plaintiff: Ibrahim Nyambare King’oina; Plaintiff: Robert Onsomu; Plaintiff: Gideon Mogaka Nyabando; Defendant: Peninah Nabaala; Defendant: Charles Nabaala
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 585 of 2017
- Procedural Posture
- Interlocutory Application / Ruling on Interlocutory Application
- Outcome
- Application partly allowed; interlocutory orders granted in terms of prayers 3 and 5; costs in the cause.
- Judges
- MN Kullow
- Legal Topics
- Interlocutory Injunctions, Prima Facie Case, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Nyambare King’oina
Plaintiff
Robert Onsomu
Plaintiff
Gideon Mogaka Nyabando
Plaintiff
Peninah Nabaala
Defendant
Charles Nabaala
Defendant
Procedural Posture
Interlocutory Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of interlocutory orders.
- 2 Whether the contested issues require determination at a full hearing with evidence and cross-examination.
- 3 Whether prayers 2 and 4, being final orders, can be granted at the interlocutory stage.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case as required by the principles in Giella v Cassman Brown. The issues raised in the application were contested and could only be determined conclusively at a full hearing where evidence would be adduced and witnesses cross-examined. The court therefore allowed the application in terms of prayers 3 and 5, which were appropriate at the interlocutory stage, but declined to grant prayers 2 and 4 as they amounted to final orders that could not be issued at this stage. Costs were ordered to be in the cause.
Court Disposition
Application partly allowed; interlocutory orders granted in terms of prayers 3 and 5; costs in the cause.
Orders
- Application dated 11th December, 2017 allowed in terms of prayers 3 and 5.
- Prayers 2 and 4 declined as they are final orders.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 585 OF 2017
IBRAHIM NYAMBARE KING’OINA
ROBERT ONSOMU
GIDEON MOGAKA NYABANDO
(Suing as the chairman, secretary, and treasurer
of Bogetuitu famers union aka
Gobetutu co-operative society)...............................PLAINTIFFS
-Versus-
PENINAH NABAALA....................................1ST DEFENDANT
CHARLES NABAALA...................................2ND DEFENDANT
RULING
Having read the Application before me and the submissions filed by the parties I find that the Plaintiffs’ have established a prima facie case as laid down in the case of GIELLA –VERSUS- CASSMAN BROWN. I do find that from the Application the issues that are contested by the parties can only be determined at a full hearing where evidence will be called and the witness subjected to cross- examination to test the veracity of those assertion.
In the circumstance I will allow the application dated 11th December, 2017 in terms of prayers 3 and 5. I decline to grant prayer 2 and 4 as they are final orders that can be granted at this interlocutory stage.
Costs of the Application in the cause.
Orders accordingly.
DATED, SIGNED and DELIVERED in open court at NAROK on this 9th day of MARCH, 2018
Mohammed Noor Kullow
Judge
9/3/18
In the presence of:
Mr Mitiambo for the Plaintiff/Applicant
Mr Kamwaro for the Defendant/Respondent
CA:Chuma
Mohamed Noor Kullow
Judge
9/3/18