[2017] KEELC 1992 (KLR)
The court found that the applicant had satisfied the conditions for the grant of an interlocutory injunction as set out in GEILLA v CASSMAN BROWN. The dispute over land ownership and alleged fraud raised substantial questions that require full trial for resolution. However, to preserve the status quo and prevent...
Source-derived case information.
- Citation
- [2017] KEELC 1992 (KLR)
- Parties
- Plaintiff: Leshan Ole Kukuu; Defendant: James Kaipoi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 454 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Injunctive Relief, Land Adjudication, Title Disputes, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leshan Ole Kukuu
Plaintiff
James Kaipoi
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the defendant from interfering with parcel OLOMISMIS adjudication 186.
- 2 Whether the applicant has demonstrated a prima facie case with a probability of success.
- 3 Whether the balance of convenience and risk of irreparable harm favor granting the injunction.
Ratio Decidendi
The court found that the applicant had satisfied the conditions for the grant of an interlocutory injunction as set out in GEILLA v CASSMAN BROWN. The dispute over land ownership and alleged fraud raised substantial questions that require full trial for resolution. However, to preserve the status quo and prevent potential loss or damage to the applicant, the court granted the injunction restraining the defendant from interfering with the suit property pending determination of the main suit. The court noted that the substantive issues regarding title and alleged encroachment would be addressed at trial, and that the applicant had demonstrated a prima facie case with a probability of...
Court Disposition
application allowed
Orders
- The defendant is restrained from dealing or interfering in any manner with parcel OLOMISMIS adjudication 186 within Olomismis Group Ranch pending the hearing and determination of the suit.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 454 OF 2017
LESHAN OLE KUKUU.................................PLAINTIFF
-VERSUS-
JAMES KAIPOI.........................................DEFENDANT
RULING
The Applicant had by an application dated 30th May, 2017 sought orders to restrain the Defendant from dealing or interfering with any manner a parcel of land known as OLOMISMIS adjudication 186 within Olomismis Group Ranch.
The application was based on the grounds that the plaintiff was the allotee of the said plot and the Defendant had forcefully entered the said plot on 17th May, 2017 and started grazing his cattle. The Applicant contends the said action will make him suffer loss and damage.
The Application was also supported by a Supporting Affidavit of Leshan Ole Kukuuin which he expounded on the grounds and annexed various documents including the list of Olomismis Group Ranch.
In the affidavit the Applicant states that he was allocated 60acres of land and he later purchased 13 acres. The Applicant states that his family has lived on the land further that the defendant has encroached on the land by about 15 acres and the Respondent is grazing his animals.
The Applicant alleges that the Respondent has obtained title to the said land through fraudulent means.
The Respondent has opposed the Application and filed a Replying Affidavit dated 12th June, 2017. He states that he is a bonafide purchaser of the land known as TRANS MARA OLEMISMIS/1072 and he lawfully lives on the said land. The Respondent alleges that the applicant lives on a parcel of land known as TRANSMARA/OLEMISMIS/1073and that both their respective land is separated by a road. The Respondent also denies that the Applicant purchased 13 acres of land as claimed.
On the issue of having a title to the land that was obtained the respondent denies the same.
On the 13th June, 2017 the Application was canvassed before me by learned Counsel acting for both the Applicant and the Respondent.
I have read the Application together with the annextures thereon and I have further read the Replying Affidavit and I have submissions made by counsel in the matter and the issue for determination in this application to my mind are matters that can be addressed during a full trial where witness testimony can be heard.
In the meantime I am convinced that the Applicant has met the conditions for the grant for an injunction as outlined in the case of GEILLA VERSUS CASSMAN BROWNand I will thus allow the application dated 30th May, 2017. The cost of this Application shall be in the cause.
DATED, SIGNED and DELIVERED in open court at NAROK on this 13th day of July 2017.
Mohamed N. Kullow
Judge
13/7/17
In the presence of:
Ms. Mukoye for the Plaintiff/Applicant
Mr. Morintat holding brief for Serian for the Defendant/Respondent
CA:Chuma