[2017] KEELC 3476 (KLR)
The court found that the applicant had established a prima facie case by producing title deeds and a sale agreement evidencing her proprietorship of the disputed parcels. The respondents failed to appear or contest the application, further strengthening the applicant's position. Although there was no conclusive...
Source-derived case information.
- Citation
- [2017] KEELC 3476 (KLR)
- Parties
- Plaintiff: Linet Chepkemoi Masai; Defendant: Dennis Masai; Defendant: John Barasa Masai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 5 of 2017
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Temporary injunction granted in favor of the applicant; costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Proprietorship Disputes, Prima Facie Case, Irreparable Damage, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linet Chepkemoi Masai
Plaintiff
Dennis Masai
Defendant
John Barasa Masai
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether the applicant will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favors granting the injunction.
Ratio Decidendi
The court found that the applicant had established a prima facie case by producing title deeds and a sale agreement evidencing her proprietorship of the disputed parcels. The respondents failed to appear or contest the application, further strengthening the applicant's position. Although there was no conclusive proof of irreparable harm that could not be compensated by damages, the court held that the balance of convenience favored the applicant, as it would be unjust to allow the respondents to continue interfering with the land in the absence of any opposition. Consequently, a temporary injunction was granted restraining the respondents from interfering with the applicant's land pending...
Court Disposition
Temporary injunction granted in favor of the applicant; costs in the cause.
Orders
- A temporary injunction is issued restraining the respondents from entering, trespassing on, ploughing, leasing, selling, wasting, damaging, alienating, charging, or in any way interfering with the applicant's quiet possession of land parcels Kiminini/Kinyoro Block 2/Chumek/52, 53, 58, 59, 60 and 61 pending the...
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 5 OF 2017
LINET CHEPKEMOI MASAI…………………………PLAINTIFF
VERSUS
DENNIS MASAI…………………………………..1ST DEFENDANT
JOHN BARASA MASAI………………………. 2ND DEFENDANT
R U L I N G
The applicant brought an application dated 9/1/2017seeking orders of temporary injunction to restrain the respondents and their agents from entering, trespassing on or ploughing, leasing, selling, wasting, damaging, alienating, charging and/or in any other way interfering with the plaintiff’s quiet possession of her land parcels Kiminini/Kinyoro Block 2/Chumek/52, 53, 58, 59, 60and61.
On the 2nd February, 2017 when the matter came up before court I issued an interim order of injunction against the respondents restraining them from any dealings with the subject land pending the hearing of the application interpartes. At the same time I ordered that the application be heard interpartes on 14/2/2017.
When the application came up for hearing on 14/2/2017 the defendants were absent. They had also filed nothing in response to the application. Upon satisfying myself that the service of the hearing notice upon the defendants was properly effected, the hearing proceeded.
The applicant states that she is the registered proprietor of the parcels of land known as Kiminini/Kinyoro Block 2/Chumek/52, 53, 58, 59, 60and61. The copies of title deeds evidencing ownership are annexed to the affidavit sworn by the applicant in support of the application. In addition there is annexed to the said affidavit annexture “LCM7” which is a copy of an agreement between the applicant and two vendors, Gerald Nathaniel KalyaandWilson Kiplagat Kalya in which the vendors agreed to sell the portions of land referred to hereinabove.
In the case of Giella -vs- Cassman Brown the principles that govern issuance of injunction by a court of law were stated. First, the applicant must demonstrate that he has a prima facie case with probability of success. Secondly, the applicant must prove that he will in the absence of the injunction suffer irreparable damage which may not be adequately compensated by way of an award of damages and if the court is in doubt, orders should be made having regard to the balance of convenience.
I have no doubt that in a case like this one where the applicant has exhibited copies of documents in evidence of proprietorship of land and the respondents have failed to appear or file their response to the application for injunction the applicant has demonstrated that she has a prima facie case with probability of success. However there is no proof of possibility of damage that may not be remedied by way of an award of damages against the respondents. Nevertheless I find that it would not be just to allow the respondents to continue dealing with the subject land when they have not even put up any opposition to the application. The balance of convenience therefore tilts in favour of the applicant. For these reasons there shall be a temporary injunction against both respondents restraining them from in any way interfering with the land parcels known as Kiminini/Kinyoro Block 2/Chumek/52, 53, 58, 59, 60and61 pending the hearing and determination of this suit.
Costs of this application shall be in the cause.
Dated, signed and delivered at Kitale on this 27thday of February, 2017.
MWANGI NJOROGE
JUDGE
In the presence of:
Mr. Ngeywa.
Court Assistant - Isabellah