[2018] KEELC 3300 (KLR)
The court found that the plaintiff, as the registered owner of the suit land, had established a prima facie case with a probability of success. The threats and actions by the respondent, including involving the Assistant County Commissioner and threatening arrest, constituted sufficient grounds to believe the...
Source-derived case information.
- Citation
- [2018] KEELC 3300 (KLR)
- Parties
- Plaintiff: Kinyamal Ole Lolgisoi; Defendant: Anthony Cheporion Chepkwosi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 580 of 2017
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Land Title, Specific Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kinyamal Ole Lolgisoi
Plaintiff
Anthony Cheporion Chepkwosi
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant the grant of an interlocutory injunction.
- 2 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff, as the registered owner of the suit land, had established a prima facie case with a probability of success. The threats and actions by the respondent, including involving the Assistant County Commissioner and threatening arrest, constituted sufficient grounds to believe the plaintiff would suffer irreparable harm if the injunction was not granted. The court held that damages would not be an adequate remedy in the circumstances. The substantive dispute regarding the alleged sale and transfer of the land was deemed a matter for determination at the full hearing. Accordingly, the court granted the interlocutory injunction as sought in prayer 4 of the...
Court Disposition
application allowed
Orders
- The defendant is restrained from interfering, entering, cultivating, or leasing parcel Narok/Trans Mara/Kapune/243 pending the hearing and determination of the suit.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 580 OF 2017
KINYAMAL OLE LOLGISOI ........................... PLAINTIFF
-VERSUS-
ANTHONY CHEPORION CHEPKWOSI ......... DEFENDANT
RULING
The Plaintiff’s Application is dated 24th November, 2017 and is brought under Order 40 Rule 1 and 2 of the Civil Procedure Rules. The Applicant seeks an interlocutory order of injunction to restrain the Defendant from interfering, entering, cultivating and leasing a parcel of land known as Narok/Trans Mara/Kapune/243 (hereinafter called the suit land) pending the hearing and determination of the suit.
The Application was supported by the Affidavit of the Plaintiff. He deponed that he is the registered owner of the suit property and he attached a copy of a certificate of title and an official search. He stated that on or about the 28th September, 2017 the Respondent demanded that he does transfer a portion measuring 4 acres to him and when he declined the Respondent resorted to use the Assistant County Commissioner Trans Mara West and he received a copy of summons from the said Assistant County Commissioner on 9th November, 2017 where he was threatened with arrest.
The Applicant avers that the action of the said Assistant County commissioner will be prejudicial to him.
The Respondent opposed the said application by way of filing a replying affidavit. The respondent alleges that he purchased some 4 acres of land from the plaintiff on 22nd February, 1995 and he annexed a copy of sale agreement. He further contended that he demanded from the applicant to sign a transfer to enable him secure a title for the parcel of land and lastly that the applicant has interfered with the suit property by cutting the fence.
When the application came for hearing on 6th February, 2018 the parties agreed to have the application argued by way of written submissions. The applicant filed his submissions on 16th February, 2018 but the Respondent is yet to file his submissions despite being given the opportunity to do so.
The Applicant’s advocate submitted that the applicant is the registered owner of the suit land and that the respondent wants to deprive him of the same by using the Assistant County Commissioner Trans Mara West and that the Respondent wants to occupy the suit land forcefully.
I have read the application before me and the pleadings filed. As stated in the case of Guella -Versus- Cassman Brown and Co (1973)EA 358an Applicant for interlocutory injunction must proof that he has a prima facie case with probability of success and unless orders are not granted he will suffer irreparable loss and damage.
The Plaintiff case against the Respondent is based on threats made by the Respondent. The Respondent on the other hand contends that he had purchased the suit land and in which the plaintiff denies. These are matters than can only be resolved on the hearing of the substantive suit.
In view of the above I find that the applicant has demonstrated that the respondent has actuated the threats by using the Assistant County Commissioner and I find that the Applicant has established a prima facie case with a probability of success and damages may not be enough to compensate him.
The upshot of the foregoing is that I will allow the application dated 24th November, 2017 in terms of prayer 4 with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 18th day of APRIL, 2018
Mohammed Noor Kullow
Judge
18/4/2018
In the presence of:
Ms Cheptoo holding brief for Onduso for the defendant
N/A for the Applicant
CA:Chuma
Mohammed Noor Kullow
Judge
18/4/2018