[2013] KEHC 5820 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success based on his long-standing possession and the defendant's unchallenged acts of trespass and demolition. The absence of any response or opposition from the defendant strengthened the plaintiff's case. The court further...
Source-derived case information.
- Citation
- [2013] KEHC 5820 (KLR)
- Parties
- Plaintiff: Joseph Gichoya Mbogo; Defendant: Malindi Municipal Council
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 70 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Injunctions, Trespass, Demolition of Property, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gichoya Mbogo
Plaintiff
Malindi Municipal Council
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success based on his long-standing possession and the defendant's unchallenged acts of trespass and demolition. The absence of any response or opposition from the defendant strengthened the plaintiff's case. The court further held that the plaintiff would suffer irreparable harm that could not be adequately compensated by damages if the injunction was not granted, particularly given the threat of further demolition, including his house. Accordingly, the court granted the interlocutory injunction as prayed, restraining the defendant from further demolition or damage to the suit property pending the...
Court Disposition
application allowed
Orders
- An order of injunction is issued restraining the defendant, its agents, servants, employees, and any others claiming through it from any further demolition or damage to the portion of the suit property belonging to the plaintiff pending hearing and determination of the suit.
- The defendant shall pay the costs of this application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
ENVIRONMENT AND LAND COURT
CIVIL CASE NO. 70 OF 2013
JOSEPH GICHOYA MBOGO………………………………PLAINTIFF
=VERSUS=
MALINDI MUNICIPAL COUNCIL……………………..DEFENDANT
RULING
What is before me is the Plaintiff’s Application dated 26th April 2013 seeking for the following orders.
That pending hearing and determination of this suit, an order of injunction do issue restraining the respondent, its agents, servants, employees and any others claiming through it from any further demolition or damage to the portion of the suit property belonging to the applicant.
That the applicant be awarded the costs of this application.
The Application is supported by the Affidavit of the Plaintiff. In the said Affidavit, the Plaintiff has deponed that he is the beneficial owner of a portion of land measuring 26 X 35 meters which is part of plot number 958 (original number 50/2) Watamu and that he has been in exclusive possession of the same for over 35 years.
The Applicant has further deponed that on 23rd April 2013, the Defendant without any colour of right trespassed and damaged the back fence of his property and also demolished two block build latrines so as to create a road access to serve plot number 49; that the Respondent has threatened to go back and demolish his house and that this court should restrain the Respondent from inflicting any more damage to the property.
The Application was served on the Defendant’s representative on 2nd May 2013 but the Defendant did not file a Replying Affidavit, Grounds of Opposition or a Notice of Preliminary Objection as required under Order 51, Rule 14 of the Civil Procedure Rules, 2010.
In the circumstances, and relying on the Supporting Affidavit and the annextures thereto, and the Plaintiff’s oral submissions, I find and hold that the Applicant has established a prima facie case with chances of success. The Applicant will also suffer irreparable loss that will not be compensated by way of damages unless the injunctive is granted by this court.
For the above reason, I allow ``the Application dated 13th May, 2013 as prayed.
Dated and Delivered in Malindi this 20thday of June, 2013.
O. A. Angote
Judge