[2017] KEELC 3857 (KLR)
The court found that the acts the plaintiff sought to restrain had already occurred, as the defendant was alleged to have entered the land in late 2014 and was in possession. The plaintiff failed to demonstrate that he would suffer irreparable harm if the injunction was not granted. Furthermore, the defendant...
Source-derived case information.
- Citation
- [2017] KEELC 3857 (KLR)
- Parties
- Plaintiff: Henry Wambua Kieti; Defendant: Yassin Bakari Seif
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- AA Omollo
- Legal Topics
- Interlocutory Injunctions, Land Trespass, Irreparable Harm, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Wambua Kieti
Plaintiff
Yassin Bakari Seif
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from dealing with the suit property pending determination of the suit.
- 2 Whether the plaintiff has demonstrated irreparable harm or loss justifying the grant of an injunction.
- 3 Whether the balance of convenience favours the grant or refusal of the injunction.
Ratio Decidendi
The court found that the acts the plaintiff sought to restrain had already occurred, as the defendant was alleged to have entered the land in late 2014 and was in possession. The plaintiff failed to demonstrate that he would suffer irreparable harm if the injunction was not granted. Furthermore, the defendant claimed to reside on a different parcel of land, and granting the injunction could result in his eviction before the suit was heard on its merits. The balance of convenience therefore favoured the defendant, who was in possession. The application for a temporary injunction lacked merit and was dismissed with costs to abide the outcome of the main suit.
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed.
- Costs of the application to abide the outcome of the main suit.
Full Case Text
Judgment text and source record
21 paragraphs
Kieti v Seif (Environment & Land Case 143 of 2016) [2017] KEELC 3857 (KLR) (28 February 2017) (Ruling)
Henry Wambua Kieti v Yassin Bakari Seif [2017] eKLR
Neutral citation: [2017] KEELC 3857 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 143 of 2016
AA Omollo, J
February 28, 2017
Between
Henry Wambua Kieti
Plaintiff
and
Yassin Bakari Seif
Defendant
Ruling
1. The application dated 31st May 2016 and brought under Order 40 rule 1, 2, 3 (1) & 4, Order 51, Rule 1, of the Civil Procedure Rules Section 1A, 1B, 3A and 63 (e) of the Civil Procedure Act. The applicant sought for the orders:1. Spent2. Spent3. The Defendant/Respondent acting by itself or its agents, servants and or employees be temporarily restrained from encroaching into, trespassing, alienating, occupying, erecting buildings and/or other structures, or in any way dealing with or interfering with Kwale/Msambweni “A”/1587, measuring o.6 HA, at Msambweni, Kwale County pending the hearing and determination of this suit “hereafter the suit property”.4. The Officer commanding Station (OCS) Msambweni Police Station do enforce compliance of this Court’s Order.5. The costs of this application are provided for.
2. I have considered the pleadings filed and the written submissions by both parties. The applicant deposed in paragraph 4 of his supporting affidavit “that in the late year 2014, I realised that the defendant had trespassed and/or encroached on a portion of my land measuring 0. 6 ha.” This suit was filed on 31st May 2016 more than one year after the alleged encroachment had taken place. Further paragraph 6 of the affidavit in support, the applicant deposed that the surveyor came and identified the extent of the encroachment as o.1 ha.
3. The defendant on his part deposed that he is residing on plot No Kwale/Msambweni ‘A’/889 registered in the name of Nikulo Mohamed Gaziya – deceased which land has not been subdivided. The defendant annexed a copy of the official search and a map showing the existence of plot No 889.
4. The applicant is seeking orders restraining the defendant or his employees from, “encroaching into, trespassing, alienating, occupying, erecting buildings and or other structures” pending determination of the suit. These acts the applicant wants restraining orders have already taken place since the defendant is alleged to have entered the land in late 2014. Secondly the defendant alleges that where he lives is a different parcel of land. In the circumstances if the temporary orders of injunction are granted at this stage the defendant may be evicted before the suit is heard on its merits.
5. The applicant has also not demonstrated to Court that the loss he is likely to suffer will be irreparable. On the principal of balance of convenience, the same tilts in favour of the Respondent who is in possession. I am therefore not satisfied of any merit in the application. I order that it be dismissed with costs to abide the outcome of the main suit.
DATED AND DELIVERED IN MOMBASA THIS 28TH DAY OF FEBRUARY 2017. A. OMOLLOJUDGE