[2017] KEELC 1411 (KLR)
The court found that the applicant failed to establish a prima facie case with a probability of success, as there was no evidence that the applicant's vendor, Kahindi Karisa Ngala, ever owned the suit properties. The applicant did not demonstrate completion of the sale transaction or transfer of title, nor did he...
Source-derived case information.
- Citation
- [2017] KEELC 1411 (KLR)
- Parties
- Applicant: Jelani Nureni Abashobu; Respondent: James Mwangi; Respondent: James Ngala
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 65 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote, JO Olola
- Legal Topics
- Injunctive Relief, Ownership Dispute, Locus Standi, Trespass, Sale of Land, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jelani Nureni Abashobu
Applicant
James Mwangi
Respondent
James Ngala
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
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 injury if the injunction is not granted.
- 3 Whether the applicant has locus standi to bring the suit regarding the suit properties.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case with a probability of success, as there was no evidence that the applicant's vendor, Kahindi Karisa Ngala, ever owned the suit properties. The applicant did not demonstrate completion of the sale transaction or transfer of title, nor did he rebut the respondents' assertion that the properties are owned by Ivory Sands Limited and enclosed by a perimeter wall. The applicant also failed to show irreparable injury or respond to the challenge on locus standi. Consequently, the threshold for granting a temporary injunction was not met, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 21st March, 2016 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
ELC CASE NO. 65 OF 2016
JELANI NURENI ABASHOBU......................................APPLICANT
VERSUS
JAMES MWANGI...............................................1ST RESPONDENT
JAMES NGALA ................................................2ND RESPONDENT
RULING
1. In the Notice of Motion dated 21st March, 2016, the Plaintiff is seeking for the following orders:
a. That pending the hearing and determination of this Application herein a temporary injunction order do issue restraining the Defendants/Respondents by themselves, their agents, servants and any other person having interest from trespassing, digging sand, marking out boundaries or interfering in any way with plot numbers 376 and 378 Jimba Settlement Scheme.
b. That this Application be heard inter-parties on such a time this Honourable Court may direct.
c. That costs of this Application be provided for.
2. The Application is premised on the grounds that the Applicant is the rightful owner of plot numbers 376 and 378; that the Respondents have trespassed on the two plots and that the Respondents have failed to recognize the boundaries of the said plots.
3. In his Affidavit, the Plaintiff deponed that he purchased the suit properties for Kshs. 2,000,000 from the late Kahindi Karisa Ngala; that the Defendants invaded the suit land between 10th and 15th February, 2016 and that the Respondents have started fencing the said plots.
4. In response, the 1st Defendant deponed that he has been managing and taking care of parcel of land known as Kilifi/Jimba/426 since the year 2009 having been authorized to do so by the owner, one Tabu Karisa Moki (deceased); that the owner of Plot Nos. 376 and 378 is Ivory Sands Limited and that they have never had any misunderstanding with the owner of Plot Nos. 376 and 378.
5. According to the Defendants, Plots Nos. 376 and 378 are enclosed with a perimeter wall and their boundaries are distinct; that Plot No. 378 does not share a wall with Plot No. 426 and that in any event, the Applicant does not have the locus standi to file the current suit.
6. It is the Defendants’ case that the said Kahindi Karisa Ngala has never owned Plot No. 376 and 378; that the annexed allotment letter is a forgery and that they have never invaded the said two plots.
7. Both the Plaintiff’s and Defendants’ advocates filed their respective submissions which I have considered.
8. The Plaintiff’s case is that he purchased parcels of land known as plot numbers 376 and 378 from one Kahindi Karisa Ngala. The said Kahindi Karisa Ngala died on 21st March, 2015.
9. Although the Plaintiff claims that the Defendants have encroached on the said parcels of land, the Defendants have denied that claim.
10. According to the 1st Defendant, he is only taking care of the neighbouring plot, which is Plot No. 426.
11. The Defendants have stated in their pleadings that indeed, plot numbers 376 and 378 have a perimeter wall and that the same are not owned by the Plaintiff.
12. Although the Plaintiff annexed a Sale Agreement showing that he purchased the suit property from one Kahindi on 11th January, 2010, the Plaintiff did not inform the court if he completed the transaction by paying the full purchase price and transferring the property to his name.
13. Indeed, there is no evidence before this court to show that the two suit properties were owned by the said Kahindi Karisa in the first place.
14. In any event, the Plaintiff did not respond to the Respondents’ deposition that the two properties have a perimeter wall and that they are owned by Ivory Sands Limited.
15. In view of the above observations, I find that the Plaintiff has neither established a prima facie case with chances of success nor shown the irreparable injury that he shall suffer if the injunctive order is not granted.
16. For those reasons, I dismiss the Application dated 21st March, 2016 with costs.
DATED AND SIGNEDATMACHAKOSTHIS2NDDAY OFMAY, 2017.
O. A. ANGOTE
JUDGE
DATED, DELIVEREDANDSIGNEDATMALINDITHIS12THDAY OFMAY, 2017.
J. O. OLOLA
JUDGE