[2018] KEELC 3500 (KLR)
The court found that the defendant/applicant failed to establish a sufficient basis for the grant of a temporary injunction. The plaintiffs, though lacking registered title, demonstrated possession and interests arising from sale agreements, which the defendant acknowledged. The defendant did not provide evidence of...
Source-derived case information.
- Citation
- [2018] KEELC 3500 (KLR)
- Parties
- Plaintiff: Ismael Ambeyi; Plaintiff: Patrick Wekesa; Defendant: Davis Wafula Nakitale
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 145 of 2016
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the plaintiffs
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Land Ownership Disputes, Sale of Land Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ismael Ambeyi
Plaintiff
Patrick Wekesa
Plaintiff
Davis Wafula Nakitale
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant/applicant is entitled to a temporary injunction restraining the plaintiffs from wasting the suit land.
- 2 Whether the plaintiffs have established any legal or equitable interest in the suit land sufficient to defeat the application for injunction.
- 3 Whether damages would be an adequate remedy in the circumstances.
Ratio Decidendi
The court found that the defendant/applicant failed to establish a sufficient basis for the grant of a temporary injunction. The plaintiffs, though lacking registered title, demonstrated possession and interests arising from sale agreements, which the defendant acknowledged. The defendant did not provide evidence of ownership or show that the alleged waste would result in irreparable harm not compensable by damages. The plaintiffs' long-standing possession was uncontested, and the court held that damages would be an adequate remedy for any proven loss. Consequently, the application for injunction lacked merit and was dismissed with costs to the plaintiffs.
Court Disposition
application dismissed with costs to the plaintiffs
Orders
- The application dated 12/3/2018 is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 145 OF 2016
ISMAEL AMBEYI......................................1ST PLAINTIFF/RESPONDENT
PATRICK WEKESA.................................2ND PLAINTIFF/RESPONDENT
VERSUS
DAVIS WAFULA NAKITALE...........................DEFENDANT/APPLICANT
R U L I N G
1. The application dated 12/2/2017 seeks an order of temporary injunction to restrain the plaintiff/respondent from wasting or continuing to waste the land subject matter of this suit. It is alleged that the plaintiffs and their agents began excavating murram from the suit land on 10/2/2018. The application is supported by the sworn affidavit of the defendant.
2. The application is opposed. The 1st plaintiff filed a replying affidavit which he swore on 19/2/2018. The grounds upon which he opposes the application are that he bought 4 acres out of the said land and took possession thereof. He exhibits an agreement. He states that upon execution of that agreement the defendant allowed him to take immediate possession of the land. The defendant was supposed to hand over his particulars to facilitate transfer of the land to the 1st plaintiff but he has never done so despite the plaintiff paying the entire consideration under the agreement.
3. I have looked at the plaint. Whereas the 1st plaintiff alleges he bought a portion of the land from the defendant, the 2nd plaintiff alleges he bought his portion from one Jonathan Mtende. The plaintiffs have not exhibited any title to land in their name as the transfers have not been registered. At present all they seem to be having are interests created by the agreements mentioned in their pleadings.
4. However, I have examined the annextures to the 1st plaintiff’s reply and read the exhibited affidavit of the defendant which acknowledges that he sold some land to the 1st plaintiff and that only a balance of Kshs.200,000/- remained outstanding in that sale. The defendant has not also exhibited any documents showing he owns the land. There is a “draft defence” filed by the defendant that also does not assert any ownership of the land. Other parties are mentioned by the plaintiffs as having sold their interest in the land to the 2nd plaintiff and to the defendant.
5. I find that there is not enough basis laid before this court by the applicant to warrant the granting of the orders sought in the application dated 12/3/2018. This is a matter in which the parties should seek a hearing date on priority basis and have all issues surrounding the suit land should upon hearing be determined on the merit. The plaintiffs aver they have been on the land for 10 years. This is not controverted by the defendant. There is also no evidence that the damage caused would not be capable of being compensated for by way of damages.
6. I therefore find that the application dated 12/3/2018 has no merit and I dismiss it with costs to the plaintiffs.
It is so ordered.
Dated, signed and delivered at Kitale on this 11thday of April, 2018.
MWANGI NJOROGE
JUDGE
11/4/2018
Coram:
Before - Mwangi Njoroge - Judge
Court Assistant - Picoty
N/A for parties
COURT
Ruling delivered in open court in the absence of the parties who had notice of the ruling date.
MWANGI NJOROGE
JUDGE
11/4/2018