[2009] KEHC 3302 (KLR)
The court found that the plaintiff failed to meet the threshold for the grant of an interlocutory injunction. The plaintiff did not provide sufficient evidence to prove that his title to the suit land was still valid, especially in light of the defendant's uncontested assertion that all titles in the area had been...
Source-derived case information.
- Citation
- [2009] KEHC 3302 (KLR)
- Parties
- Plaintiff: John Sitienei Singira; Defendant: Jane Chepkerich
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 83 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Title to Land, Forest Land Disputes, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Sitienei Singira
Plaintiff
Jane Chepkerich
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of a temporary injunction restraining the defendant from interfering with the suit land.
- 2 Whether the plaintiff has demonstrated that he holds a valid title to the suit land despite allegations of title cancellation due to forest land status.
- 3 Whether the defendant has a right to occupy the suit land.
Ratio Decidendi
The court found that the plaintiff failed to meet the threshold for the grant of an interlocutory injunction. The plaintiff did not provide sufficient evidence to prove that his title to the suit land was still valid, especially in light of the defendant's uncontested assertion that all titles in the area had been cancelled for being on forest land. The plaintiff also failed to counter the defendant's claim of right to occupy the land. Consequently, the court held that the plaintiff had not established a prima facie case or demonstrated any irreparable harm that would warrant the issuance of a temporary injunction. The application was therefore dismissed with costs to the defendant.
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 83 of 2009
JOHN SITIENEI SINGIRA……...……….PLAINTIFF
VERSUS
JANE CHEPKERICH……………………Defendant
RULING
The plaintiff seeks under Order 39 Rules 1,2,3 and 9 of the Civil Procedure Rules for an order “THAT pending the hearing and determination of this application interparties there be a temporary injunction restraining the Defendant/Respondent by herself, her servants and/or agents from alienating, disposing off wasting, dealing and/or anyway interfering with the Plaintiff’s/Applicant parcel of land known as NAKURU/NESSUIT/119 measuring approximately 20. 24 Hectares and that she should be ordered strict to the 2½ offered to her.” It is not clear what is meant by “strict to the 21/2 offered to her” but after perusing of the application together with the affidavit in support, I suppose the plaintiff meant to have the defendant confined to the 21/2 portion (the suit piece of land) offered to her. The application is based on the ground that although the plaintiff allowed the defendant to occupy that portion of his land situate in Nessuit and known as Title No. Nakuru/ Nessuit/119 on humanitarian grounds, like the proverbial giraffe which was only given shelter for its head but soon deposed the owner of the house, the defendant is now asserting ownership rights of that portion hence this application.
The defendant on the other hand contends that the suit piece of land is hers as of right the same having been allocated to her over 50 years ago. She further contends that in any case titles in the area where the land is situate have been cancelled on the ground that they are on forest land.
I have perused the application and considered these rival submissions. The plaintiff has not disputed the allegation that titles for the area have been cancelled for being in a forest. Other than a copy of the title deed dated 16th July 1997, the plaintiff has not exhibited anything like a certificate of official search to show that the title to his land is still valid. He has also not countered the defendant’s assertion that she is on the suit land as of right. In the circumstances I agree with counsel for the defendant that this application has not met the threshold for grant of injunctions set out in Giella Vs Cassman Brown Co. Ltd. [1973] EA 358 and followed in several subsequent cases including Teresa Shitaka Vs Mary Mwamodo & Others [1982-88] 1 KAR 965. Consequently I dismiss this application with costs.
DATED and delivered this 19th day of May, 2009.
D. K. MARAGA
JUDGE.