[2020] KEELC 2798 (KLR)
The court found that the applicants' only relationship to the suit land was as children of the respondent and that their apprehension of exclusion from the land's subdivision was not supported by concrete evidence. The applicants had moved onto the land without the respondent's consent and denied him and other...
Source-derived case information.
- Citation
- [2020] KEELC 2798 (KLR)
- Parties
- Applicant: John Ratika Koini; Applicant: Joseph Lemayian Koini; Applicant: Allan Supeyo Koini; Respondent: Samson Kipas Ole Koini
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Petition 25 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- MN Kullow
- Legal Topics
- Temporary Injunctions, Ancestral Land Disputes, Family Property Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Ratika Koini
Applicant
Joseph Lemayian Koini
Applicant
Allan Supeyo Koini
Applicant
Samson Kipas Ole Koini
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case for the grant of a temporary injunction restraining the respondent from interfering with the suit land.
- 2 Whether the applicants would suffer irreparable harm not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the applicants' only relationship to the suit land was as children of the respondent and that their apprehension of exclusion from the land's subdivision was not supported by concrete evidence. The applicants had moved onto the land without the respondent's consent and denied him and other children access, which the court found to be conduct inconsistent with seeking equitable relief. The applicants failed to satisfy the conditions for the grant of an injunction, particularly the requirement of a prima facie case and coming to court with clean hands. Accordingly, the application for a temporary injunction was dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 29th October, 2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIORNMENT AND LAND COURT AT NAROK
PET 25 OF 2019
IN THE MATTER OF ARTICLES 19,20(4) (a), 21(1),22(1) (d), 27(1)(2)(30 and 60(1) OF THE CONSTITUTION OF KENYA 2010
IN THE MATTER OF MAASAI CUSTOMARY LAWS
AND
IN THE MATTER OF PETITION BY
JOHN RATIKA KOINI.........................................1ST PETITIONER
JOSEPH LEMAYIAN KOINI..............................2ND PETITIONER
ALLAN SUPEYO KOINI.....................................3RD PETITIONER
VERSUS
SAMSON KIPAS OLE KOINI..................................RESPONDENT
RULING
By a Notice of Motion dated 29th October, 2019 and brought under order 40 (1) and order 51 of the Civil Procedure Rules the applicant sought for an order of temporary injunction restraining the respondents from interfering with land parcel Cis Mara /Olololunga/4870 and 101 pending the hearing and determination by the suit herein. The Application is based on the grounds that the respondent has been making efforts to sub divide the suit land among some of his children to the exclusion of others and that the suit land is ancestral land and family property and it will be unfair to exclude some of the children. The application was further supported by the affidavit of the applicant who contended that the respondent is their father and that he has commenced the process of sub dividing the suit land to their exclusion and they may suffer if they are excluded.
The application was opposed by the respondent who averred that he is the registered and absolute owner of the suit land and the applicant is among his sixteen children. He stated that he has lived in harmony with his family until recently when the applicant started to interfere with his quiet enjoyment of his land in which they entered the suit land started commencing development thereon and they have denied him and the other children access to the land.
The parties were requested to file their submissions in respect to the application herein but none have done so since 14th November, 2019 and I will thus proceed to make a determination of the Notice of Motion lack of filing submissions notwithstanding.
This is an application in which the applicant seeks the discretion orders of injunction the conditions to the grant of the same is now well settled as to whether applicants have established a prima facie case with probability of success, whether damages will not be adequate compensation and on whose side does the balance of convenience tilts.
In the instant matter the applicants only relationship with the suit land is that they are the children of the respondent and are apprehensive that they may be excluded from the division of the land. The respondent stated that the applicants have literally moved into the land and denied him and the others access. Mere apprehension without concrete evidence is not ground for the grant for injunction. Furthermore, a party seeking the equitable discretion order of injunction must come to court with clean hands, those unilateral decisions to forcefully move into the land without the consent of the registered owner extinguishes their prayers for an order of injunction.
From the above I find that the applicants have not satisfied the conditions for the grant of orders of injunction and accordingly dismiss the Notice of Motion dated 29th October, 2019 with costs to the respondents.
DATED, SIGNED and DELIVERED IN OPEN COURT AT NAROK on this 5th day of MAY, 2020.
Mohammed Kullow
Judge
5/5/2020
In the presence of:
CA:Chuma
Ms karia for the respondent
Mr Tanyasis for Onduso for the applicant
Mohammed Kullow
Judge
5/5/2020