[2018] KEELC 3679 (KLR)
The court found that the plaintiff is the registered proprietor of the suit land and that the defendant's alleged interest is not reflected on the register and must be proved at trial. The defendant did not file an affidavit in opposition, so the plaintiff's factual assertions stand unchallenged. The court held that...
Source-derived case information.
- Citation
- [2018] KEELC 3679 (KLR)
- Parties
- Plaintiff: Joseph Kimoloi Longura; Defendant: Kibiriti Lokira Lokwara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 139 of 2016
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application for temporary injunction granted
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Registered Land Ownership, Waste and Damage, Prima Facie Case, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kimoloi Longura
Plaintiff
Kibiriti Lokira Lokwara
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with Land Parcel No. West Pokot/Siyoi/609 pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case with a probability of success.
- 3 Whether the plaintiff would suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff is the registered proprietor of the suit land and that the defendant's alleged interest is not reflected on the register and must be proved at trial. The defendant did not file an affidavit in opposition, so the plaintiff's factual assertions stand unchallenged. The court held that allowing the defendant to continue activities such as cutting trees or fencing could cause irreparable harm to the plaintiff if it is later found that the defendant has no right to the land. The plaintiff established a prima facie case and demonstrated the likelihood of suffering irreparable loss if the injunction was not granted. Therefore, the court granted the temporary...
Court Disposition
application for temporary injunction granted
Orders
- A temporary injunction is issued restraining the defendant from cutting trees, fencing, or causing damage on Land Parcel No. West Pokot/Siyoi/609 pending hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 139 OF 2016
JOSEPH KIMOLOI LONGURA...................................PLAINTIFF
VERSUS
KIBIRITI LOKIRA LOKWARA...............................DEFENDANT
R U L I N G
1. The application dated 1/3/2017 seeks an order of temporary injunction to restrain the defendant from cutting trees, fencing and or in any other way causing damage on Land Parcel No. West Pokot/Siyoi/609 pending the hearing and determination of this suit.
2. The plaintiff alleges that the defendant has begun cutting down trees on the land and that he has fenced off a portion of the said land without the plaintiff’s consent. The plaintiff avers that he is the registered proprietor of the suit land and exhibits a copy of the Certificate of Official Search in respect thereof. He also exhibits a copy of a letter dated 10/1/2017 from the District Forest Officer, West Pokot showing that some trees worth Kshs.62,250/= had been felled on the plaintiff’s land.
3. The defendant filed grounds of opposition to the application. In those grounds he stated that the prayers sought are not legally obtainable as the defendant is already in possession of 1 acre of the suit land having been placed in possession by the plaintiff, when he purchased it from the plaintiff in 1994, that the plaintiff had given the defendant the original title deed to facilitate the transfer of the said land to the defendant’s name, and that the plaintiff is estopped from reneging on his obligations. It is averred that the application does not meet the threshold granting of injunctions.
4. As no facts in opposition to the application are deponed to by way of affidavit, it can safely be presumed that the facts stated by the plaintiff in his supporting affidavit dated 1/3/2018 are correct.
5. I have examined at the plaint and the defence in this suit. This suit is yet to be heard and determined. The issue of whether the alleged agreement of 1994 between the parties exists, or if it exists, has been rendered a nullity by reason of some legal or other circumstance, is an issue for determination at the judgment stage. For now, it suffices to state here that the court has found that the plaintiff has demonstrated that he is the registered proprietor of the land. All interests by an unregistered occupant like the defendant where not reflected on the register, are subject to proof at the hearing.
6. Consequently I find that if the defendant is allowed to waste or change the nature of the land or deplete it of valuable resources, and it subsequently happens at the end of this litigation that the findings are that he does not have any right thereto, the plaintiff would be gravely prejudiced by such action.
7. I find that the plaintiff has established that he has a prima facie case and that he would, if the orders sought are not granted, suffer irreparable loss. I therefore find that the two limbs of the test in the case of Giella -vs- Cassman Brown [1973] EA 358 have been established.
8. I therefore grant the application dated 1/3/2017 in terms of prayer No. 1. The costs shall be in the cause.
Dated, signed and delivered at Kitale on this 14th day of March, 2018.
MWANGI NJOROGE
JUDGE
14/3/2018
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Ms. Arunga for plaintiff/applicant
Mr. Teti for the defendant/respondent (absent)
COURT
Ruling read in open court in the presence of counsel for the applicant
MWANGI NJOROGE
JUDGE
14/3/2018