[2017] KEELC 3657 (KLR)
The court found that although the applicant provided evidence of prior administrative and survey findings indicating encroachment, the supporting documentation failed to specify the acreage or precise extent of the alleged encroachment. The respondent disputed sharing a boundary with the applicant, raising a...
Source-derived case information.
- Citation
- [2017] KEELC 3657 (KLR)
- Parties
- Applicant: John Okulo (suing through his duly appointed attorney – Noah Okulo); Respondent: Stanley Miyumo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 2016
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Notice of Motion for Temporary Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Temporary Injunctions, Land Encroachment, Prima Facie Case, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Okulo (suing through his duly appointed attorney – Noah Okulo)
Applicant
Stanley Miyumo
Respondent
Procedural Posture
Interlocutory Injunction Application / Ruling on Notice of Motion for Temporary Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for a temporary injunction to issue at this interlocutory stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that although the applicant provided evidence of prior administrative and survey findings indicating encroachment, the supporting documentation failed to specify the acreage or precise extent of the alleged encroachment. The respondent disputed sharing a boundary with the applicant, raising a material factual dispute. The court held that, in the absence of clear and quantifiable evidence of encroachment and given the protracted nature of the dispute, it would be inappropriate to grant a temporary injunction at the interlocutory stage. Instead, the parties should expedite compliance with pre-trial procedures to enable a full hearing and determination of the substantive...
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 26th February 2016 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.45 OF 2016
JOHN OKULO (Suing through his duly
appoint attorney – NOAH OKULO)………………PLAINITFF/APPLICANT
VERSUS
STANLEY MIYUMO............................................DEFENDANT/RESPONDENT
RULING
1. John Okulo, suing through his duly appointed attorney – Noah Okulo, the Applicant, through notice of motion dated 26th February 2016 seeks for temporary injunction against Stanly Moyomo, the Respondent, restraining him from interfering with and or trespassing and or encroaching on the Applicant’s land parcel Kisumu/Nyahera/2400. The Applicant relies on the four grounds on the notice of motion which is also supported by the undated supporting affidavit filed on 4th March 2016 and supplementary affidavit sworn on 6th July 2016.
2. The notice of motion is opposed by the Respondent through the replying affidavit sworn on 11th May 2016.
3. The counsel for the Applicant and Respondent filed written submissions dated 7th October 2016 and 22nd September 2016 respectively.
4. The issues for determination are as follows:
a) Whether the applicant has established a prima facie case with a probability of success for temporary injunction to issue at this interlocutory stage.
b) Who pays the costs.
5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence, the written submission and come to the following finding;
a) That though the applicant has availed, through the annexures to the supporting and supplementary affidavit, evidence to confirm that the matter had been handled by the provincial Administration, the Land Registrar and Surveyor and that a finding had been made that the Applicant’s land had been encroached into. The area of encroachment is captured as the shaded portion in the diagram or map annexed. The acreage of the shaded portion has not been given in the report dated 13th January 2016. It would therefore be difficult to order compliance on the basis of the finding contained in the said report without specifying the acreage of encroachment.
b) That the Respondent has stated that his land does not share a boundary with that of the applicant and the court takes that to mean that the Respondent has disputed the encroachment claim. The court has noted that the applicant pleadings did not disclose when the encroachment occurred but going by the letter from the chief dated February 2015, the encroachment issue appear to have existed for some years and there is no reason why temporary injunction orders should be pursued now instead of putting efforts to comply with Order 11 of the Civil Procedure Rules for the main suit to be heard and determined without undue delay.
6. That for reasons set out above, the court finds that the notice of motion dated 26th February 2016 has no merit and is dismissed with costs.
It is so ordered.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 18TH DAY OF JANUARY 2017
In presence of;
Applicant present
Respondent present
Counsel Mr. Odeny for the Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
18/1/2017
18/01/2017
S.M. Kibunja Judge
Appellant present
Respondent present
Mr odeny for the Respondent
Appellant- My advocate is in another court.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
18/1/2017
Court: Ruling dated and delivered in open court in presence of both parties and Mr Odeny for Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
18/1/2017