[2014] KEHC 5530 (KLR)
The court found that the applicant is the registered owner of land parcel Bukhayo/Mundika/8915, as evidenced by the title deed. The respondent, by her own admission, disclaimed any interest in the suit property and asserted her claim was to a different parcel. The court, applying the principles in Giella v Cassman...
Source-derived case information.
- Citation
- [2014] KEHC 5530 (KLR)
- Parties
- Applicant: John Peter Othieno; Respondent: Anne Olawo Kimaru
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2014
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- Application for temporary injunction allowed.
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Peter Othieno
Applicant
Anne Olawo Kimaru
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from entering land parcel Bukhayo/Mundika/8915 pending determination of the suit.
- 2 Whether the applicant has established a prima facie case with a probability of success.
Ratio Decidendi
The court found that the applicant is the registered owner of land parcel Bukhayo/Mundika/8915, as evidenced by the title deed. The respondent, by her own admission, disclaimed any interest in the suit property and asserted her claim was to a different parcel. The court, applying the principles in Giella v Cassman Brown, held that the applicant had established a prima facie case and was entitled to the temporary injunction sought. The court further noted that the respondent's activities on the land, including planting maize and erecting electric poles, constituted interference with the applicant's proprietary rights. Accordingly, the application for a temporary injunction was allowed in...
Court Disposition
Application for temporary injunction allowed.
Orders
- A temporary injunction is granted restraining the respondent from entering, remaining on, or in any way interfering with land parcel Bukhayo/Mundika/8915 pending the hearing and determination of the suit.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
CIVIL CASE NO. 9 OF 2011.
JOHN PETER OTHIENO…………….…………PLAINTIFF/APPLICANT
VERSUS
ANNE OLAWO KIMARU………………….DEFENDANT/RESPONDENT.
R U L I N G.
The Plaintiff, through M/S. Gabriel Fwaya Advocates, filed the application dated 11th March, 2011 praying for among others, a temporary injunction against the defendant stopping her from entering onto land parcel Bukhayo/Mundika/8915 pending hearing and determination of this suit. The application is based on the five grounds set out on the face of the application and the supporting affidavit of John Peter Othieno sworn on 11th March, 2011.
The application is opposed by the Respondent, Anne Olawo Kimaru, through her replying affidavit sworn on 9th July, 2011 and filed through her then advocates, M/S. Balongo& company advocates.
During the hearing, Mr. Fwaya advocate appeared for the Applicant and the Respondent was in person. Both adopted their filed submissions dated 6th March, 2012 and 18th March, 2012 respectively. They also made further oral submissions. The court has considered the written and oral submissions and also the contents of the supporting and replying affidavitsfiled herein, and find as follows:
That from the copy of the title deed annexed to the supporting affidavit of John Peter Othieno, sworn on 11th March, 2011, land parcel Bukhayo/Mundika/8915 was registered in the name of the Applicant on 1st July, 2009.
That when the court visited the suit land on 10th October, 2012, in the presence of the parties, Land Surveyor and Registrar, the court noted that the plot was ‘’vacant with a tree in the middle of the plot. On the plot is planted maize by Anne Olawo Kimaru. The plot has three electric poles on it.’’
That the Respondent has in her submission indicated she has no interest in Land parcel Bukhayo/Mundika/8915 and that her interest and claim are on Land Parcel Bukhayo/Mundika/1852.
That from the foregoing, the Applicant has established that he is the registered owner of land parcel Bukhayo/Mundika/8915 and therefore under the principles set out in the case of Giella –vs- Casman Brown & co. Limited (1973) E.A 358is entitled to the order of injunction prayed for. The application dated 11th March, 2011 is allowed in terms of prayer 2 with costs in the cause.
It is so ordered.
S.M.KIBUNJA,
JUDGE.
DATED AND DELIVERED IN OPEN COURT ON 9TH DAY OF APRIL, 2014.
IN THE PRESENCE OF;
JUDGE.