[2015] KEELC 686 (KLR)
The court found that the applicant had demonstrated a prima facie case with a probability of success, as the elders' verdict—adopted as a judgment—clearly stated the respondent was entitled to only two acres from the second house, which had already been given. The respondent's attempt to take five acres from the...
Source-derived case information.
- Citation
- [2015] KEELC 686 (KLR)
- Parties
- Plaintiff: Joseph Kiprepei Lotukei; Defendant: Stephen Toroitich Korkou
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 147 of 2014
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction
- Outcome
- injunction granted
- Legal Topics
- Customary Land Allocation, Injunctions, Land Disputes Between Family Members
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kiprepei Lotukei
Plaintiff
Stephen Toroitich Korkou
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the respondent is entitled to five acres from the second house or only two acres as per the elders' verdict.
- 2 Whether the applicant has established a prima facie case for grant of an injunction.
- 3 Whether the respondent should be restrained from evicting the applicant from the disputed land.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie case with a probability of success, as the elders' verdict—adopted as a judgment—clearly stated the respondent was entitled to only two acres from the second house, which had already been given. The respondent's attempt to take five acres from the second house, contrary to the elders' decision, was unjustified. The court held that the applicant was entitled to injunctive relief to prevent the respondent from evicting him from the remaining three acres, as the respondent must seek any further entitlement from the first house, not the second. The court therefore granted the injunction as prayed, restraining the respondent...
Court Disposition
injunction granted
Orders
- An injunction is hereby issued against the respondent in terms of prayer 3 of the notice of motion dated 10/11/2014.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA.
IN THE ENVIRONMENT & LAND COURT AT KITALE.
LAND CASE NO. 147 OF 2014.
JOSEPH KIPREPEI LOTUKEI .......................................... PLAINTIFF.
VERSUS
STEPHEN TOROITICH KORKOU ...................................DEFENDANT.
R U L I N G.
The applicant and respondent are step brothers. They are sons of Korkou Tongouchin (deceased). The deceased had two wives. In 1986 the deceased sub-divided his land amongst his two wives. In 1992 there was a dispute between the applicant and his step brother Christopher. Christopher was complaining that the sub-division of their father's land was supposed to be among sons and not wives of the deceased. Christopher also raised an issue that there was a son of the deceased who was born out of wedlock and was staying at Lelan. Christopher then insisted that the deceased's son born out of wedlock (the respondent herein) should get a share of the land. It was then agreed that each house was to give two acres to the respondent.
The applicant who is from the second house gave out two acres. It was expected that the first house was also to give the respondent two acres. In 2003 the applicant learnt that when the surveyor came to curve out the land and give it out to the respondent, he curved out 5 acres from the second house alone. The land of the first house was not touched. He also discovered that the respondent had had himself registered as owner of the entire five acres belonging to his mother from the second house. The respondent had all along utilised 2 acres given. The applicant then filed a claim before the elders who found that the respondent was only entitled to 2 acres from the second house. The elders ruled that the respondent should claim the rest of the land from the first house. The elders verdict was adopted as a judgment at Kitale Law Courts.
On 16/9/2014, the respondent fenced the entire five acres and is now threatening to evict the applicant from his 3 acres. The respondent started intimidating the applicant using police and vowing to go ahead with the fencing.
The respondent who was duly served with the application as well as summons to enter appearance neither entered appearance nor filed any grounds of opposition or replying affidavit. I have gone through the applicant's application as well as the pleadings and the documents in support of the application. The principles for grant of injunctions are now well settled. First an applicant has to demonstrate that he has a prima facie case with probability of success. Secondly an injunction will not normally be granted unless the applicant will suffer irreparable injury. Thirdly if the court is in doubt, it will decide the application on a balance of convenience.
In the instant case, the applicant has demonstrated that he has a prima facie case with probability of success. There is a verdict of elders which shows that the respondent was to have 2 acres from the second house and another two from the first house. The second house has already given him 2 acres. He has to get the other acres from the first house. He cannot seek to have all the acres from the second house alone. I do not have to consider the other principles. I find that the applicant's application is well founded. The same is allowed with the result that an injunction is hereby issued against the respondent in terms of prayer 3 of the notice of motion dated 10/11/2014.
Costs shall be in the cause.
It is so ordered.
[Dated, signed and delivered at Kitale on this 20th day of January, 2015. ]
E. OBAGA.
JUDGE.
In the presence of M/s. Arunga for Mr. Katina for the applicant.
Court Clerk – Kassachoon.
E. OBAGA.
JUDGE.
20/1/2015.