[2017] KEHC 3678 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of an interlocutory injunction, as he claimed adverse possession and demonstrated ongoing trespass and environmental harm by the defendants. The defendants, having been served, did not oppose the application and raised no objection...
Source-derived case information.
- Citation
- [2017] KEHC 3678 (KLR)
- Parties
- Plaintiff: Johnson Chacha Mwita Marita Gari; Defendant: Administrator of the Estate of Waisiko Banchwa Gegocha; Defendant: Patrice Nyamohanga Bacho
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 233 of 2017
- Procedural Posture
- Notice of Motion / Interlocutory Application for Injunction
- Outcome
- Interlocutory injunction granted in favor of the plaintiff; costs in the cause.
- Judges
- GMA Ongondo
- Legal Topics
- Adverse Possession, Injunctive Relief, Trespass, Environmental Damage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Chacha Mwita Marita Gari
Plaintiff
Administrator of the Estate of Waisiko Banchwa Gegocha
Defendant
Patrice Nyamohanga Bacho
Defendant
Procedural Posture
Notice of Motion / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction restraining the defendants from dealing with the suit land.
- 2 Whether the plaintiff is entitled to protection of his alleged interest in the suit land by way of adverse possession.
- 3 Whether damages would be an adequate remedy for the alleged destruction and environmental harm.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of an interlocutory injunction, as he claimed adverse possession and demonstrated ongoing trespass and environmental harm by the defendants. The defendants, having been served, did not oppose the application and raised no objection in court. The court considered the principles in Giella v Cassman Brown, noting that damages would not be an adequate remedy for the alleged environmental destruction. The balance of convenience favored preserving the status quo pending determination of the suit. Accordingly, the court granted the injunctive order restraining the defendants from dealing with the disputed portion...
Court Disposition
Interlocutory injunction granted in favor of the plaintiff; costs in the cause.
Orders
- The defendants are restrained by an order of injunction from transferring, transmitting, alienating, wasting and/or dealing with a portion of land parcel number BUKIRA/BUHIRIMONONO/319 measuring 1 acre pending hearing and determination of the suit.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
ELC CASE NO. 233 OF 2017
JOHNSON CHACHA
MWITA MARITA GARI...........................................................PLAINTIFF
VERSUS
ADMINISTRATOR OF THE ESTATE OF WAISIKO BANCHWA
GEGOCHA........................................................................1st DEFENDANT
PATRICE NYAMOHANGA BACHO...............................2ND DEFENDANT
RULING
1. A Notice of Motion dated 12th July 2017 is brought under Certificate of Urgency pursuant to Order 40 Rule 1 and 2 of the Civil Procedure Rules and all enabling Provisions of the law, by the plaintiff/applicant against the defendant/respondent. He seeks the following orders;-
i.That this application be certified as urgent and service be dispensed in the first instance.
ii.That pending the hearing and determination of this suit, the Defendant/Respondents be restrained by an order of injunction from transferring, transmitting, alienating, wasting and or dealing with a portion of land parcel number BUKIRA/BUHIRIMONONO/319 measuring 1 acre in any manner whatsoever and howsoever pending the hearing and determination of this application.
iii.Costs.
2. The application is supported by an affidavit sworn on 12/7/2017 by the plaintiff/applicant on the following grounds;-
a) That the applicants have acquired adverse possession of portion of the suit land herein measuring 1 acre.
b) That the 2nd defendant and his agents have commenced trespassing into the applicant’s portion of the suit land and are currently destroying trees growing thereon.
c) That if not stopped by an order of injunction: the suit land is highly likely to lose its ecogical worth.
d) No award would possibly offer compensation for damages occasioned on the environment and specifically the suit land.
3. The plaintiff/applicants counsel Mr. Kisia has informed the court during inter partes hearing today that ;-
a)THAT the Defendants/respondents duly served and not filed their response to the Notice of Motion.
b)The defendant/respondent are present in court today.
c)They have no objection to the grant of orders 2 of notice of motion.
4. I have perused the Notice of Motion heard the parties and considered Article 50(1) Constitution 2010, the case of Giella Vs. Cassman Brown & Co. Limited. (1973)EA 358 and Article 159 (2) (b) & (d) Constitution 2010.
5. In the circumstances I find the Notice of Motion merited. I grant order 2 sought therein.
6. Costs be in the cause.
7. The defendant to file and serve defence within 60 days on the plaintiff.
8. Mention for pre-trial directions on 10/10/17.
DATED, SIGNED and DELIVERED at MIGORI this 25th day of July 2017
G. ONGONDO
JUDGE
In presence of :-
Mr. Kisia counsel for plaintiff/applicant
Tom – Court Assistant