[2024] KEELC 1179 (KLR)
The court found that the plaintiff had established a prima facie case by demonstrating ownership of the suit properties and showing that the defendant had encroached upon them through fraudulent registration and subdivision. The risk of the defendant selling the disputed land posed a real threat of irreparable loss...
Source-derived case information.
- Citation
- [2024] KEELC 1179 (KLR)
- Parties
- Plaintiff: Laset Limited; Defendant: Daniel Wauntai Koinange
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E024 of 2023
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- Plaintiff's application for temporary injunction allowed.
- Judges
- MN Gicheru
- Legal Topics
- Injunctive Relief, Land Title Disputes, Encroachment, Fraudulent Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Laset Limited
Plaintiff
Daniel Wauntai Koinange
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of a temporary injunction restraining the defendant from interfering with the suit properties.
- 2 Whether the plaintiff stands to suffer irreparable loss 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 had established a prima facie case by demonstrating ownership of the suit properties and showing that the defendant had encroached upon them through fraudulent registration and subdivision. The risk of the defendant selling the disputed land posed a real threat of irreparable loss to the plaintiff, as recovery of the land could not be guaranteed. The defendant's failure to oppose the application further strengthened the plaintiff's case. Applying the principles in Giella v Cassman Brown, the court concluded that all prerequisites for granting a temporary injunction were satisfied. Accordingly, the court allowed the motion to preserve the subject matter...
Court Disposition
Plaintiff's application for temporary injunction allowed.
Orders
- A temporary injunction is issued restraining the defendant, his agents, servants, or any person acting under or through him from interfering with the original beacons and boundaries concerning parcels Kajiado/Kitengela/27072-82, 202 and 203 pending the hearing and determination of the main suit.
- The OCS Oloosirkon Police Station is to ensure compliance with the above order.
Full Case Text
Judgment text and source record
20 paragraphs
Laset Limited v Koinange (Environment & Land Case E024 of 2023) [2024] KEELC 1179 (KLR) (6 February 2024) (Ruling)
Neutral citation: [2024] KEELC 1179 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E024 of 2023
MN Gicheru, J
February 6, 2024
Between
Laset Limited
Plaintiff
and
Daniel Wauntai Koinange
Defendant
Ruling
1. This ruling is on the notice of motion dated 28/3/2023. The motion which is by the plaintiff is brought under Section 13(1) and (2), 16 A (1) and (2) and 19 (1) and (2) of the Environment and Land Court Act, Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Articles 48, 50 and 159 (2) (d) of the Constitution and all other enabling provisions of the law. It seeks the following residual orders.3. That a temporary injunction do issue restraining the respondent/defendant, whether by himself, his agents, servants, or any person acting under or through him from interfering with the original beacons and boundaries concerning all those parcels of land being Kajiado/Kitengela/27072-82, 202 and 203 pending the hearing and determination of the main suit.4. That the OCS Oloosirkon Police Station to ensure compliance with the above order.5. That the costs of this application be provided.
2. The motion is supported by an affidavit sworn by Prof. Nathan Kahara, one of the directors of the plaintiff which has several annexures. There are also ten (10) grounds on which the application is based. In summary the applicant states as follows.Firstly, he is the registered owner of L.R. Kajiado/Kitengela/27072-82, 202 and 203 which he purchased from the late Ntooki Ole Papu way back in 1982. Secondly, the respondent fraudulently procured title to L.R. Kajiado/Kitengela/92075 which he subdivided into parcels 100011-1000134. Thirdly, the subdivision of L.R. 92075 into L.R. 100011-100134 encroached onto the plaintiffs land by 5 hectares.Fourthly, the plaintiff reported this encroachment to the DCI who found out that the defendant had used forged documents to obtain registration of the plaintiff’s land.Fifthly, the defendant was charged in criminal case at Ngong Law Courts.Sixthly, if the orders sought are not granted, the defendant may sell the illegally registered land to unsuspecting members of the public and also occasion the plaintiff irreparable loss that cannot be compensated by an award of damages.
3. The motion, though served is unopposed by the respondent who has not filed any reply thereto.
4. Counsel for the plaintiff filed written submissions dated 29/1/2023 in which he identified two issue for determination.a.Whether the applicant has satisfied the criteria for injunctive relief.b.Who bears the costs.
5. I have carefully considered the motion in its entirety including the grounds, affidavit, annexures, the written submissions and the case law cited thereon. I find that the plaintiff has established a prima facie with a probability in that it has shown that its land has been encroached on by the defendant. It has also shown that the defendant may sell off the land. This selling will definitely cause the plaintiff loss and there is no guarantee that the land will be recoverable. It is therefore prudent to allow the motion so as to preserve the subject matter of the suit. The prerequisites to the grant of an order of temporary injunction as set out in the case of Giella v Cassman Brown (1973) E.A. 358 have all been met. I therefore allow the motion in terms of prayers 3 and 4. Costs in the cause.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 6TH DAY OF FEBRUARY 2024. M.N. GICHERUJUDGE