[2013] KEELC 121 (KLR)
The court found that the plaintiff had demonstrated a prima facie case with a probability of success, supported by documentary evidence from the District Land Adjudication and Settlement Officer confirming registration of the suit land in the plaintiff's name. The defendant failed to file any material to challenge...
Source-derived case information.
- Citation
- [2013] KEELC 121 (KLR)
- Parties
- Plaintiff: Kipturgo Amdany; Defendant: Johana Sirma Cheburet
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 299 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for interlocutory injunction allowed.
- Legal Topics
- Injunctive Relief, Adjudication Register, Proprietary Interest, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipturgo Amdany
Plaintiff
Johana Sirma Cheburet
Defendant
Procedural Posture
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 damages would be an adequate remedy for the plaintiff in the circumstances.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff had demonstrated a prima facie case with a probability of success, supported by documentary evidence from the District Land Adjudication and Settlement Officer confirming registration of the suit land in the plaintiff's name. The defendant failed to file any material to challenge the plaintiff's claim or establish any proprietary interest in the land. The court was satisfied that the adjudication process had been finalized and that the plaintiff was entitled to seek protection of his proprietary rights. Applying the principles in Giella v Cassman Brown, the court concluded that the plaintiff was entitled to an interlocutory injunction restraining the...
Court Disposition
Application for interlocutory injunction allowed.
Orders
- The defendant is restrained by way of interlocutory injunction from entering into, remaining upon, ploughing, building any structure or in any other way interfering with Plot No. 2071 Kapkoiwo Adjudication Section until the suit is heard and determined.
- The costs of this application shall be costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 299 OF 2013
KIPTURGO AMDANY....................................................................................PLAINTIFF
VS
JOHANA SIRMA CHEBURET....................................................................DEFENDANT
RULING
Before me is an application dated 27 May 2013 filed by the plaintiff. It is an application for injunction brought under the provisions of Order 40 Rules 1,2 and 3. The plaintiff has sought orders to have the defendant restrained by way of an interlocutory injunction from trespassing, interfering or dealing in any way with the land parcel described as Plot No. 2071 Kapkoiwo Adjudication Section. The application is supported by the affidavit of the plaintiff. The defendant despite being served has not entered any appearance to this suit and has not filed any material to oppose the application by the plaintiff.
Although the application has not been opposed by the defendant, this does not mean that I must automatically allow the same. This is an application for injunction and I need to be satisfied that the principles laid out in the case of Giella v Cassman Brown (1973) EA 358 have been met. First I need to be satisfied that the the applicant has demonstrated a prima facie case with a probability of success; be alive to the tenet that an injunction will not normally be granted unless damages are an inadequate remedy; and if in doubt, decide the matter on a balance of convenience.
The case of the plaintiff is set out in his plaint and is elaborated in the supporting affidavit to this application. It is his case that he is the owner of the land described as Plot No. 2071 Kapkoiwo Adjudication Section measuring about fourty acres. He has averred that the defendant has entered the suit land yet he has no proprietary interest in the same. He has stated that the defendant lives about 5 kilometers away from the land and has without any right encroached into about 1. 5 acres of the suit land. The plaintiff has stated that the adjudication work has been finalized and all that he is waiting for is the issuance of title deed. Annexed to his affidavit is a letter from the District Land Adjudication and Settlement Officer, Baringo land adjudication area which confirms that the Plot No. 2071 of Kapkoiwo Adjudication Section is registered in the name of the plaintiff.
The material before me speaks for itself. I have no reason to doubt that the plaintiff is the owner of the suit land especially given the letter of the land adjudication officer. It appears to me as if the adjudication register has been closed in accordance with Section 27 of the Land Adjudication Act, CAP 284, and therefore the plaintiff is entitled to file suit to protect his proprietary interests. The defendant has not filed anything to demonstrate that he has any rights over the suit land. In absence of this, I find that the plaintiff has demonstrated a prima facie case with a probability of success. I therefore allow this application for injunction and order the defendant restrained from entering into, remaining upon, ploughing, building any structure or in any other way interfere with the land Plot No. 2071 Kapkoiwo Adjudication Section.
The costs of this application shall be costs in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JULY 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Mr. Tarus of Ms Tarus & Co Advocates for the Plaintiff/applicant
N/A for the defendant/respondent who has not entered appearance