[2018] KEELC 3496 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the 1st defendant produced a valid title deed and evidence of purchase and settlement of outstanding land payments. The plaintiff did not demonstrate any legal right to the land or present documentation...
Source-derived case information.
- Citation
- [2018] KEELC 3496 (KLR)
- Parties
- Plaintiff: John Masinde Kanchenja; Defendant: Jeremiah Marabu Miyoro; Defendant: County Land Adjudication & Settlement Officer-Trans-Nzoia; Defendant: Director of Land Adjudication & Settlement
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 89 of 2017
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the 1st defendant
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Title Deeds, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Masinde Kanchenja
Plaintiff
Jeremiah Marabu Miyoro
Defendant
County Land Adjudication & Settlement Officer-Trans-Nzoia
Defendant
Director of Land Adjudication & Settlement
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant the grant of a mandatory and temporary injunction.
- 2 Whether the plaintiff would suffer irreparable injury that cannot be compensated by damages if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the orders sought.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the 1st defendant produced a valid title deed and evidence of purchase and settlement of outstanding land payments. The plaintiff did not demonstrate any legal right to the land or present documentation supporting his claim. The court further held that any injury suffered by the plaintiff could be compensated by damages, and thus the threshold for granting a mandatory or temporary injunction was not met. The balance of convenience also favoured the 1st defendant, who held registered title. Consequently, the application for injunction was dismissed with costs to the 1st defendant.
Court Disposition
application dismissed with costs to the 1st defendant
Orders
- The application dated 4/12/2017 is dismissed.
- Costs awarded to the 1st defendant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 89 OF 2017
JOHN MASINDE KANCHENJA.......................................PLAINTIFF
VERSUS
JEREMIAH MARABU MIYORO...........................1ST DEFENDANT
COUNTY LAND ADJUDICATION &
SETTLEMENT OFFICER-TRANS-NZOIA.........2ND DEFENDANT
DIRECTOR OF LAND
ADJUDICATION & SETTLEMENT.....................3RD DEFENDANT
R U L I N G
1. The application dated 4/12/2017 seeks a mandatory order of injunction directing the 1st defendant to demolish the fence and structures he has erected on the plaintiff’s plot known as Plot No. 182 Kanyarkwat Settlement Schemewithin 7 days of the order and in default the plaintiff be at liberty to bring them down and the cost of demolition be borne by the 1st defendant.
2. The application also seeks an order of temporary injunction restraining the 1st defendant from encroaching, fencing, cultivating, trespassing onto, wasting, ploughing, growing crops, leasing, occupying, developing or dealing in any manner with the suit land pending the determination of this suit.
3. The grounds upon which the application is brought are that the 1st defendant is fencing the suit land in utter violation of the plaintiff’s rights and that the 1st defendant has threatened to occasion violence upon the applicant. It is alleged that the applicant lives on the suit land. However, according to the aplicant, he was not an allottee of the land and has never been issued with any allotment letter.
4. The 1st defendant opposed the application by filing his sworn replying affidavit dated 24/1/2018. In that affidavit he asserts that he is the registered proprietor of the land and exhibits a copy of a title deed bearing the date 21/2/2017, a date prior to the filing of this suit. He indicates that he purchased the land from one Hannah Kirui on 13/3/2015 whereupon Hannah Kirui repaid the Settlement Fund Trustees the loan of Kshs.50,000/= she owed. A copy of the receipt for the said payment is exhibited as “JMM3”.
5. The parties clearly are interested in the same parcel of land on the ground. The party with the documents that bear greater weight for now in this application is the 1st defendant. He avers that the plaintiff has only erected a structure, and the structure is outside the suit land. He also casts doubt on the applicant’s right to the land.
6. I find that in view of the evidence presented by the parties, the plaintiff has not established that he has a prima facie case with a probability of success or that he would suffer injury that cannot be compensated for by way of damages if the orders sought are not granted.
7. Consequently, I dismiss the application dated 4/12/2017 with costs to the 1st defendant.
Dated, signed and delivered at Kitale on this 26th day of March, 2018.
MWANGI NJOROGE
JUDGE
26/3/2017
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant – Picoty
N/A for the parties
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
26/3/2018