[2013] KEHC 4958 (KLR)
The court found that the applicant had established a prima facie case as the registered owner of the suit property, with no evidence of encumbrances or overriding interests. The respondents' actions in fencing off the property and preventing the applicant's access were uncontroverted. The court held that unless...
Source-derived case information.
- Citation
- [2013] KEHC 4958 (KLR)
- Parties
- Plaintiff: Jackson K. Tuitoek; Defendant: Stephen Tangus Selienyi; Defendant: Michael Chebii; Defendant: Vincent Moiben
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 91 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction (ex Parte)
- Outcome
- Application allowed; interlocutory injunction granted as prayed.
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Title Deeds, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson K. Tuitoek
Plaintiff
Stephen Tangus Selienyi
Defendant
Michael Chebii
Defendant
Vincent Moiben
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction (ex Parte)
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of an interlocutory injunction.
- 2 Whether the applicant would suffer irreparable harm not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favours the grant of an injunction.
Ratio Decidendi
The court found that the applicant had established a prima facie case as the registered owner of the suit property, with no evidence of encumbrances or overriding interests. The respondents' actions in fencing off the property and preventing the applicant's access were uncontroverted. The court held that unless restrained, the applicant would suffer prejudice that could not be adequately compensated by damages. The balance of convenience was found to favour the applicant. Accordingly, the court granted the interlocutory injunction as prayed, restraining the respondents from interfering with the suit property pending the determination of the suit.
Court Disposition
Application allowed; interlocutory injunction granted as prayed.
Orders
- A temporary injunction is issued restraining the respondents, their agents, servants or any other persons from interfering with parcel NAKURU/NGONGONGERI/1285 pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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JACKSON K. TUITOEK...............................................................PLAINTIFF/APPLICANT
VERSUS
STEPHEN TANGUS SELIENYI.......................................1STDEFENDANT/RESPONDENT
MICHAEL CHEBII...........................................................2NDDEFENDANT/RESPONDENT
VINCENT MOIBEN........................................................3RDDEFENDANT/RESPONDENT
RULING
By a plaint dated 19th March, 2012, the applicant Jackson K. Tuitoek, instituted this suit against the respondents, Stephen Tangus, Michael Chebii and Vincent Moiben seeking a perpectual injunction restraining the respondents either acting by themselves, their agents, servants or any other manner whatsoever from interferring with the parcel of land known as NAKURU/NGONGONGERI/1285 (the suit property).
Simutaneneously with the plaint, the applicant filed the notice of motion dated 19thMarch, 2012 seeking, the above orders, on a temporary basis pending the hearing and determination of the suit.
The application is supported by the affidavit of the applicant and is premised on the ground that the respondents have without any colour of right entered the applicant's parcel of land (the suit property) and started cultivating thereon.
Despite the fact that the application had been fixed for hearing in the presence of all parties, when it was called for hearing on 17thJuly, 2012, there was no appearance for the respondents. It was, therefore, heard ex parte.
Notwithstanding the fact that the application is undefended the burden is on the applicant to prove his case by showing that it meets the conditions for granting an interlocutory injunction as set out in Giella Cassman Brown & Co. Ltd. (1973) EA 358, namely that he has a prima facie case with a probability of success, that unless an injunction is granted, he might otherwise suffer injury which cannot adequately be compensated by an award of damages; and that the balance of convenience tilts in his favour.
From the affidavit sworn by the applicant and the annexture thereto (title deed) prima facie the applicant is the registered owner of the suit property.
No evidence whatsoever has been led to show that the ownership of the applicant is subject to any encumbrances or overriding interests contemplated under Sections 28 and 30 of the repealed Registered Land Act.
In his supporting affidavit the applicant has averred that the respondents have fenced off the suit property and prevented him from having any dealings with the same. These averments have not been controverted by the respondents and given that, prima facie, he is the owner of the suit property, I am satisfied that unless an injunction is issued to restrain the respondents from proceeding with their illegal alienation of the suit property, the applicant may be greatly prejudiced. I am also satisfied that the balance of convenience tilts in his favour.
The upshot of the foregoing is that the application has merit and is allowed as prayed.
Dated and Signed at Nakuru this 18thday of January, 2013.
W. OUKO
JUDGE
Dated, Signed and Delivered at Nakuru this 29thday of January, 2013 by Hon. Justice M. J. Anyara Emukule.
JUDGE