[2016] KEELC 664 (KLR)
The court found that the plaintiff, as the personal representative of the registered owner of the suit land, had established a prima facie case with a probability of success. The evidence presented, including the search certificate and photographs of ongoing construction, was unchallenged by the defendant, who...
Source-derived case information.
- Citation
- [2016] KEELC 664 (KLR)
- Parties
- Plaintiff: Janeffer Chebii Kimetto (suing as the personal representative of the late Jonah Kipkoske Arap Chumo); Defendant: Board of Governors, Chebwagan Youth Polytechnic
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 30 of 2016
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application for injunction allowed
- Judges
- MA Silau
- Legal Topics
- Injunctions, Trespass, Land Ownership, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janeffer Chebii Kimetto (suing as the personal representative of the late Jonah Kipkoske Arap Chumo)
Plaintiff
Board of Governors, Chebwagan Youth Polytechnic
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction against the defendant.
- 2 Whether there is a risk of irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff, as the personal representative of the registered owner of the suit land, had established a prima facie case with a probability of success. The evidence presented, including the search certificate and photographs of ongoing construction, was unchallenged by the defendant, who failed to enter appearance or respond to the application. The court held that there was a risk of irreparable loss if the construction was allowed to continue, as it would waste the land. Consequently, the court granted the interlocutory injunction restraining the defendant from continuing construction on the suit land until the conclusion of the suit.
Court Disposition
application for injunction allowed
Orders
- The defendant is restrained from continuing with any construction on land parcel Kericho/Litein/330 until the conclusion of the suit.
- The costs of the application shall be costs in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 30 OF 2016
JANEFFER CHEBII KIMETTO………………..……................….………………….PLAINTIFF
(suing as the personal representative of the lateJONAH KIPKOSKE ARAP CHUMO)
VERSUS
BOARD OF GOVERNORS
CHEBWAGAN YOUTH POLYTECHNIC .…………..................…….………..DEFENDANT
RULING
(Application for injunction; plaintiff contending that defendant is building on her land; no response by the defendant ; application not opposed; application allowed)
This suit was commenced by way of plaint filed on 26th May 2016. The plaintiff is the personal representative of the estate of Jonah Kipkoske Chumo (deceased) in whose name the land parcel Kericho/Litein/330is registered. It is averred that the defendant has illegally trespassed into the said land and has commenced constructing structures. In the suit, the plaintiff has asked for orders of permanent injunction against the defendant restraining it from interfering with the suit land.
Together with the plaint, the plaintiff filed an application for injunction which is the subject of this ruling. Despite being served, the defendant has not entered appearance to this suit nor replied to the application. The only material that I have is therefore that supplied by the plaintiff. The plaintiff has annexed a copy of a search certificate of the suit land and photographs of ongoing construction. I have no reason to doubt these documents.
Having considered the matter, I am of the view that the plaintiff has displayed a prima facie case with a probability of success. There is risk of irreparable loss if the ongoing construction is allowed to proceed for this will waste the land. I therefore allow the application for injunction and order the defendant to stop all construction in the land parcel Kericho/Litein/330 until the conclusion of this suit.
The costs of the application shall be costs in the cause.
It is so ordered.
Dated, Signed and delivered on this 29th day of July, 2016
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT
Ms. Kitur holding brief for Ms Chelimo for Plaintiff/applicant
No appearance for Defendant/Respondent
Court Assistant: Gladys Wambany