[2019] KEELC 2377 (KLR)
The court found that the applicants sought an injunction in respect of Land Parcel Trans Mara/Olalui/296, whereas the suit before the court related to Land Parcel Trans Mara/Olalui/294. Since the injunction was sought over land not the subject of the current proceedings, the application was fundamentally...
Source-derived case information.
- Citation
- [2019] KEELC 2377 (KLR)
- Parties
- Plaintiff: Kaikui Nawankas; Defendant: Joseph Ole Lionka Soit alias Lelionka Ole Soit; Defendant: David Debaba Rosoroso alias David T. Konchellah
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 555 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- MN Kullow
- Legal Topics
- Injunctions, Land Ownership Disputes, Trespass, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaikui Nawankas
Plaintiff
Joseph Ole Lionka Soit alias Lelionka Ole Soit
Defendant
David Debaba Rosoroso alias David T. Konchellah
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the respondent from interfering with their possession of Land Parcel TRANS MARA/OLALUI/296 pending determination of the suit.
- 2 Whether the respondent is a trespasser on the suit land or the registered owner entitled to possession.
Ratio Decidendi
The court found that the applicants sought an injunction in respect of Land Parcel Trans Mara/Olalui/296, whereas the suit before the court related to Land Parcel Trans Mara/Olalui/294. Since the injunction was sought over land not the subject of the current proceedings, the application was fundamentally misconceived. Furthermore, the respondent had demonstrated registration and a prior judgment in his favour regarding the disputed land. The applicants failed to establish a prima facie case or satisfy the conditions for the grant of an interlocutory injunction. Accordingly, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 30th November, 2018 is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 555 OF 2017
Formerly Kisii HCCC NO. 61 OF 2009
KAIKUI NAWANKAS....................PLAINTIFF/RESPONDENT
VERSUS
JOSEPH OLE LIONKA SOIT
AliasLELIONKA OLE SOIT......1ST DEFENDANT/APPLICANT
DAVID DEBABA ROSOROSO Alias
DAVID T. KONCHELLAH........2ND DEFENDANT/APPLICANT
RULING
The Application before court is the Notice of Motion dated 30th November, 2018 which was brought under Order 40 Rule 1 and 2 of the Civil Procedure Rules seeking for an order of injunction against the Respondent stopping him from using farming and/or in any manner interfering with the Applicants possession of Land Parcel TRANS MARA/OLALUI/296 pending the hearing and determination of the suit herein. The Application was based on the grounds that the Applicants were threatened with death if they stepped on the suit land and that the Respondents are trespassers to the land who has displaced the Applicants herein from the suit land.
The Application was opposed by the Respondents who had filed a replying affidavit and he averred that he is the registered owner of the suit land and has attached to his affidavit a certificate of search and contend that the Applicant is the owner of Land Parcel No. Trans Mara Olalui/296 which does not share any common boundary with his land and that there was a previous case in which Judgement was entered in his favour between him and the Applicants and he attached a decree in Kisii Environment and Land Court Civil Suit No. 61 of 2009 and that the current suit is only meant to frustrate the enjoyment of his judgement.
I have read the Application before me and submissions filed by the respondent and from it it is now settled the condition upon which the grant of orders of injunction are granted. From the pleadings it is not in dispute that both parties own Land Parcel No. Trans Mara /Olalui/296 and Trans Mara/Olalui/294.
It is the Applicants contention that the Respondents are threatening him from his own Parcel that is, Trans Mara/Olalui/296 whereas in the instant suit it relates to Land Parcel Trans Mara/Olalui/294 and in the circumstances it was proper for the court to issue an injunction in respect of the Parcel of Land which is not the subject matter before the court.
In view of the above I find that the notice of motion lacks merit and I dismiss the same.
DATED, SIGNED and DELIVERED in open court at NAROK on this 19th day of July, 2019
Mohammed Noor Kullow
Judge
19/7/19
In the presence of:-
N/A by parties
CA:Chuma
Mohammed Noor Kullow
Judge
19/7/19