[2016] KEELC 701 (KLR)
The court found that the Defendants failed to provide sufficient evidence to support their allegations that the Plaintiffs were subdividing or selling the suit property. The only evidence presented—photographs of a temporary structure—did not conclusively demonstrate that the Plaintiffs were engaging in the alleged...
Source-derived case information.
- Citation
- [2016] KEELC 701 (KLR)
- Parties
- Plaintiff: Kavumbi Kitsao Chengo; Plaintiff: Thubu Kitsao Kazungu (administrators of Benson Kahindi Baya, deceased); Defendant: Samuel Charo Mweni (sued in his own capacity and as the legal representative of the estate of the late Karisa Madumbo Mweni); Defendant: Charo Nyule Mramba; Defendant: Kalume Nyule Mramba; Defendant: Hon. Attorney General (sued on behalf of Hon. Resident Magistrate-Kaloleni)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 224 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kavumbi Kitsao Chengo
Plaintiff
Thubu Kitsao Kazungu (administrators of Benson Kahindi Baya, deceased)
Plaintiff
Samuel Charo Mweni (sued in his own capacity and as the legal representative of the estate of the late Karisa Madumbo Mweni)
Defendant
Charo Nyule Mramba
Defendant
Kalume Nyule Mramba
Defendant
Hon. Attorney General (sued on behalf of Hon. Resident Magistrate-Kaloleni)
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Defendants have established a prima facie case to warrant the grant of a temporary injunction against the Plaintiffs restraining them from subdividing or selling the suit property.
- 2 Whether there is sufficient evidence that the Plaintiffs are subdividing or selling the suit property.
- 3 Whether the balance of convenience and interests of justice favour the grant of the injunction sought by the Defendants.
Ratio Decidendi
The court found that the Defendants failed to provide sufficient evidence to support their allegations that the Plaintiffs were subdividing or selling the suit property. The only evidence presented—photographs of a temporary structure—did not conclusively demonstrate that the Plaintiffs were engaging in the alleged activities, nor did it show that the structures belonged to strangers rather than family members. The Defendants did not annex any documentary evidence of sale or subdivision. Applying the principles for granting interlocutory injunctions, the court held that the Defendants had not established a prima facie case or shown irreparable harm. Consequently, the application for a...
Court Disposition
application dismissed
Orders
- The Defendants' application dated 14th December, 2015 is dismissed with costs to the Plaintiffs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 224 OF 2013
1. KAVUMBI KITSAO CHENGO
2. THUBU KITSAO KAZUNGU (administrators of
BENSON KAHINDI BAYA (deceased)................................................................PLAINTIFFS
=VERSUS=
1. SAMUEL CHARO MWENI (sued in his own capacity
and as the legal representative of the estate of the late
KARISA MADUMBO MWENI
2. CHARO NYULE MRAMBA
3. KALUME NYULE MRAMBA
4. HON. ATTORNEY GENERAL (sued on behalf of
HON. RESIDENT MAGISTRATE-KALOLENI................................................DEFENDANTS
R U L I N G
1. The Notice of Motion that is before me is the one dated 14th December, 2015 in which the 1st, 2nd and 3rd Defendants are seeking for the following orders:-
(a) THAT a temporary injunction order do issue restraining the Plaintiffs/ Respondents by themselves, their servants, agents, family members and any other person deriving interest and/or acting under them from subdividing, selling portions from the suit premises being Plot No. Kaloleni/Chalani/III and/or allowing strangers to construct structures thereon until this application is heard and finalized.
(b) THAT a temporary injunction order do issue restraining the Plaintiffs/Respondents by themselves, their servants, family members and any other person deriving interest and/or acting under them from subdividing, selling portions from the suit premises being Plot No. Kaloleni/Chalani/III and/or allowing strangers to construct structures thereon until this suit is heard and finalised.
2. The Application is grounded on the fact that unless the Plaintiffs are stopped by this court, they will continue selling portions of the suit land.
3. In his Affidavit, the 1st Defendant/Applicant deponed that the Plaintiff and her agents are subdividing the suit land and selling it; that the actions by the Plaintiffs of selling the suit property is meant to defeat justice and that it is in the best interest of justice that the Plaintiff should be injuncted.
4. The 1st Defendant swore an affidavit and deponed that her, together with her grandson, are the ones entitled to the estate of the late Baya Ngwana; that the late Baya Ngwana is the registered proprietor of the suit property and that it is not true that they are subdividing and selling the suit land.
5. The Plaintiff's advocate filed brief submissions and reiterated what was deponed by his client.
6. I have perused the file and noted that on 31st October, 2014, I granted to the Plaintiffs an order of injunction. The said order restrained the Defendants from selling or dealing in any manner whatsoever with the suit property pending the hearing and determination of the suit.
7. The Defendants are now praying for an order of injunction to issue as against the Plaintiffs.
8. The Defendants have not annexed any document to support the allegation that the Plaintiffs are selling the suit property.
9. Although the defendants have annexed photographs showing the construction of a temporary structure, there is no evidence to show that the said structure does not belong to the Plaintiff's family members.
10. There is also no evidence before me to show that the Plaintiff is subdividing and selling the suit property.
11. In the circumstances, I decline to allow the Defendant's Application dated 14th December, 2015. The Application is dismissed with costs.
Dated, signed and delivered in Malindi this 14thday of July, 2016.
O. A. Angote
Judge