[2010] KEHC 2393 (KLR)
The court found that the applicants had demonstrated a prima facie case for the grant of a temporary injunction. They had been in occupation of the suit land for over 12 years, were not the registered owners, and faced imminent eviction and demolition of their homes. The respondents, as registered owners, had...
Source-derived case information.
- Citation
- [2010] KEHC 2393 (KLR)
- Parties
- Plaintiff: Kahindi Katana Chengo & 19 Others; Defendant: Hafsa Omar Mzee Haji
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 97 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Adverse Possession, Temporary Injunctions, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kahindi Katana Chengo & 19 Others
Plaintiff
Hafsa Omar Mzee Haji
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the plaintiffs/applicants have established a prima facie case for grant of a temporary injunction restraining the defendants from evicting them or demolishing their houses on the suit land.
- 2 Whether the applicants are entitled to protection from eviction pending determination of their claim for adverse possession.
Ratio Decidendi
The court found that the applicants had demonstrated a prima facie case for the grant of a temporary injunction. They had been in occupation of the suit land for over 12 years, were not the registered owners, and faced imminent eviction and demolition of their homes. The respondents, as registered owners, had discontinued their occupation and did not oppose the application. The court held that the applicants would suffer irreparable harm if evicted, as damages would not be adequate compensation, and the balance of convenience favoured the applicants who were in actual occupation. Accordingly, the court granted temporary restraining orders against the defendants/respondents, to remain in...
Court Disposition
application allowed
Orders
- Temporary restraining orders do issue against the defendants/respondents restraining them from demolishing the plaintiffs' houses or evicting the plaintiffs/applicants from plot No. 150/111/MN.
- The restraining orders shall remain in force until the suit is heard and determined.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Civil Suit 97 of 2009 (O.S)
IN THE MATTER OF:LAND PARCEL NO. 150/111/MN
A N D
IN THE MATTER OF:AN APPLICATION FOR DECLARATION THAT THE PLAINTIFFS/APPLICANTS HAVE OBTIANED OWNERSHIP OF NINE DECIMAL NINE SIX (9. 96) ACRES OF THE ABOVE SAID LAND BY WAY OF ADVERSE POSSESSION
BETWEEN
KAHINDI KATANA CHENGO & 19 OTHERS………..PLAINTIFFS
VERSUS
HAFSA OMAR MZEE HAJI ………………….…….DEFENDANTS
R U L I N G
The Originating Summons is dated 27th October 2009, and is made under Order XXXIX rule 11, 2, 3 and 9 and section 3A and 3(e) of the Civil Procedure Act.
It seeks that temporary injunction do issue against the defendants by themselves and/or their servants and/or agents or employees or anyone acting on their behalf, so as to restrain them from demolishing the plaintiff’s houses or on plot No. 150/111/MN or evicting the plaintiffs/applicants therefrom.
The grounds on which this application arises are that:
(1)Applicants have been in occupation of the said plot for over 12 years.
(2)The registered owners of the plot are the defendants who have discontinued their occupation and/or possession of the suit land while the plaintiffs have dispossessed the defendant of their parcel of land.
In the affidavit supporting the application, Kahindi Katana Chengo (the deponent) states that the suit premises is registered in the names of the respondents as per the certified extract of Title and a copy of search (KK2). The applicants have been in occupation with the last ones settling in 1996 and they have remained the continuous and uninterrupted occupation.
In 2002, the 3rd respondent obtained eviction orders from the Kilifi Court following an award by the Land Disputes Tribunal in respect of one Boyed Beja Mwamwaka who is residing on the suit premises and purported to use that order to evict all the applicants (who were not affected by those orders) when the applicants protested, the eviction and demolition process was stopped. However on 19th March 2009, the 3rd respondent and police officers from Kijipwa Police Station went to the suit premises and ordered the applicants to vacate the property. It is deponed that applicants live on and cultivate the land and are pursuing orders for adverse possession so if injunctive orders are not issued, they will lose the only residence they know and will suffer irreparably and that infact no prejudice will be occasioned to the respondents as they are not in actual occupation.
The respondents did not file any responses to the application. From what is presented before this court, the applicants have demonstrated that they have a prima facie case by virtue of them being in occupation then not being registered owners and the intended eviction.
(2)They are likely to have their homes demolished and lose the land they have been tilling – this would be such loss that damages would not be adequate compensation.
(3)They are in occupation of the land unlike the respondent and so even the balance of convenience tilts in their favour.
Due to the aforegoing, I allow the application and order that temporary restraining orders do issue against the defendants/respondents and remain in force until the suit is head and determined.
Delivered and dated this 21stday of June 2010 at Malindi.
H. A. Omondi
JUDGE
Mr. Shujaa holding brief for Kenga plaintiff