[2023] KEELC 20902 (KLR)
The court found that the applicants failed to establish a prima facie case for the grant of an interlocutory injunction. The respondent's evidence that a boundary determination exercise had already taken place was not rebutted by the applicants. The court held that the issues raised in the application had been...
Source-derived case information.
- Citation
- [2023] KEELC 20902 (KLR)
- Parties
- Applicant: Edward Tipape Kateto; Applicant: Emmanuel Katoria Kateto; Respondent: Kaakai Ene Nankoo Mosiany
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E009 of 2022
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- LC Komingoi
- Legal Topics
- Interlocutory Injunctions, Quiet Possession, Boundary Disputes, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Tipape Kateto
Applicant
Emmanuel Katoria Kateto
Applicant
Kaakai Ene Nankoo Mosiany
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant the grant of an interlocutory injunction restraining the respondent from entering or interfering with the suit property.
- 2 Whether the balance of convenience and irreparable harm favor the grant of the injunction.
Ratio Decidendi
The court found that the applicants failed to establish a prima facie case for the grant of an interlocutory injunction. The respondent's evidence that a boundary determination exercise had already taken place was not rebutted by the applicants. The court held that the issues raised in the application had been overtaken by events and that there was no justification for restraining the respondent from the suit property. The court emphasized the need to expedite the hearing of the originating summons rather than grant interim relief. Consequently, the application lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for interlocutory injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
Kateto & another v Mosiany (Environment & Land Case E009 of 2022) [2023] KEELC 20902 (KLR) (19 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20902 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E009 of 2022
LC Komingoi, J
October 19, 2023
Between
Edward Tipape Kateto
1st Applicant
Emmanuel Katoria Kateto
2nd Applicant
and
Kaakai Ene Nankoo Mosiany
Respondent
Ruling
1. This is the Notice of Motion dated 13th July 2023 brought under;Under Section 1A, 1B, & 3A of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and all enabling Provisions of Law
2. It seeks Orders;1. Spent.2. Spent.3. That an order of injunction do issue directed at the Respondent whether by herself, or through her servants, agents or employees restraining them from entering the suit property or premises on parcel of land Title No. Kajiado/Dalalekutuk/3134 or interfering with the quiet possession and enjoyment of the parcel of land by the Applicants pending the hearing and determination of the suit herein.4. That costs of this application be provided for.5. That this Honourable Court do issue any other order as it may deem fit.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 9.
4. The Application is supported by the affidavit of Edward Tipape Kateto and Emmanuel Katoria Kateto the Applicants herein sworn on the 13th July 2023.
5. The Application is opposed. There is a Replying Affidavit sworn by Kaakai ene Nankoo Mosiany, the Respondent herein on the 26th June 2023.
6. The Notice of Motion was canvassed by oral submissions. In their submissions counsel substantiated their clients’ respective positions stated on the respective affidavits. It is now appropriate to consider the facts That have emerged and the legal principles applicable.
7. The principles were set down in the precedent setting case of Giella v Cassmasman Brown & Co. Ltd(1973) EA 358. In the case of Mrao Ltd v First American Bank Ltd & 2 Others (2003) KLR 125 the Court of Appeal stated what amounts to a prima facie case.
8. In paragraph 5, of her Replying Affidavit the Respondent states;“That in the preliminary, I state That the contents in paragraph 9 to 13 of the Supporting Affidavit have substantially been overtaken by events considering That on 25th July 2023, pursuant to Boundary Dispute summons marked as their Supporting Affidavit’s annexture ETK – 1, the Kajiado Assistant County Commissioner, Sajiloni Area Chief, and Sajiloni Area Assistant Chief, registered owners and representatives of Kajiado/Dalalekutu/3131,3132,3134,3135,3136,3142,3143 and 3144 attended to the ground for a boundary determination exercise. (Annexed hereto and marked KENM-1 a copy of the list of persons in attendance)”.
9. The above averments have not been rebutted by the Applicants in any way.
10. I agree with counsel for the Respondents That the originating summons ought to be expedited without any further delay.
11. I find no merit in this application and the same is dismissed with costs to the Respondent.
SIGNED, DATED AND DELIVERED VIRTUALLY AT KAJIADO THIS 19TH DAY OCTOBER 2023. L. KOMINGOIJUDGE