[2012] KEHC 3061 (KLR)
The court found that while the plaintiff is the registered owner of the suit land, the respondents are in actual occupation and their occupation is not disputed by the applicant. Granting a temporary injunction would effectively amount to evicting the respondents before the substantive issues are determined at...
Source-derived case information.
- Citation
- [2012] KEHC 3061 (KLR)
- Parties
- Plaintiff: Joseck Shikhole; Defendant: Bernard M. Manyasi; Defendant: Kondi Manyasi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 98 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Temporary Injunctions, Land Ownership Disputes, Eviction Orders, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseck Shikhole
Plaintiff
Bernard M. Manyasi
Defendant
Kondi Manyasi
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from interfering with the suit land pending the hearing of the main suit.
- 2 Whether the balance of convenience favours the grant of the injunction.
Ratio Decidendi
The court found that while the plaintiff is the registered owner of the suit land, the respondents are in actual occupation and their occupation is not disputed by the applicant. Granting a temporary injunction would effectively amount to evicting the respondents before the substantive issues are determined at trial. The balance of convenience, therefore, lies in favour of the respondents, and the applicant's request for a temporary injunction is not justified at this interlocutory stage.
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Suit 98 of 2012
JOSECK SHIKHOLE ......................................................................... PLAINTIFF/APPLICANT
VERSUS
BERNARD M. MANYASI ................................................... 1ST DEFENDANT/RESPONDENT
KONDI MANYASI .............................................................. 2ND DEFENDANT/RESPONDENT
R U L I N G
The application dated 16. 5.12 seeks an order of temporary injunction restraining the defendants, their agents, heirs and/or assigns from alienating, tilling and/or in any other manner interfering with the plaintiffs use and occupation of land parcel No. BUTSOTSO/ESUMEYIA/4167 pending the hearing of the main suit.
The application is supported by the affidavit of the plaintiff/applicant JOSECK SHIKHOLE sworn on 16. 5.12. According to the said affidavit, the plaintiff is the registered owner of the land parcel, NO. BUTSOTSO/ESUMEYIA/4167 (hereinafter suit land). The title Deed has been exhibited (annexture “JS1”). That the Respondents have their own land but have been interferring with the applicant’s use of the suit land.
The application is opposed to as per the replying affidavit sworn by BERNARD MOI MANYASI sworn on 9. 6.12.
The Respondents contention is that they have been in occupation of the suit land from the time they were born. That the suit land is a sub-division of land parcel NO. BUTSOTSO/ESUMEYIA/702 which is their ancestral land. That the applicant has no good title to the land and that the applicant’s title is a subject of Kakamega HC/Succ. 23/02.
It is not in dispute that the suit land is registered in the applicant’s name. It is also not in dispute that the Respondents are in occupation of the land. Indeed the final prayer in the plaint is for eviction orders.
According to the Respondents, they have been in occupation of the land since they were born. This is not challenged by the applicant. Issuing restraining orders at this stage would amount to evicting the Respondents before the case has been heard.
The balance of convenience is in the Respondents favour since they are the ones in occupation of the land.
The application is therefore dismissed with costs in the cause.
Delivered, dated and signed at Kakamega in open court this 5th day of July, 2012
B. THURANIRA JADEN
J U D G E