[2011] KEHC 452 (KLR)
The court found that the applicants had demonstrated ownership of the suit property through a certificate of official search and that the defendant had interfered with their rights by trespassing and confiscating their property. In the absence of any opposition from the defendant, the court was satisfied that the...
Source-derived case information.
- Citation
- [2011] KEHC 452 (KLR)
- Parties
- Applicant: Lucas Ongaki; Applicant: Zachary Obwocha Omandi; Defendant: Nicholas Atandi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 205 of 2011
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application allowed in terms of prayer 3; interlocutory injunction granted.
- Judges
- CC Kipkorir
- Legal Topics
- Injunctive Relief, Trespass to Land, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas Ongaki
Applicant
Zachary Obwocha Omandi
Applicant
Nicholas Atandi
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the defendant from trespassing or interfering with the suit property pending determination of the suit.
- 2 Whether the applicants have established ownership and a prima facie case for the grant of injunctive relief.
Ratio Decidendi
The court found that the applicants had demonstrated ownership of the suit property through a certificate of official search and that the defendant had interfered with their rights by trespassing and confiscating their property. In the absence of any opposition from the defendant, the court was satisfied that the applicants had established a prima facie case for the grant of an interlocutory injunction. The court therefore allowed the application in terms of prayer 3, restraining the defendant from trespassing or interfering with the applicants' access, use, occupation, possession, or ownership of Kisii Municipality Block III/388 pending the hearing and determination of the suit.
Court Disposition
Application allowed in terms of prayer 3; interlocutory injunction granted.
Orders
- Pending the hearing of this suit, the defendant/respondent whether by himself or acting through, in consort with his agents, servants or employees is restrained from trespassing into or in any way whatsoever interfering with the plaintiffs’/applicants’ access into, use of, occupation of, possession of and/or...
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL CASE NO. 205 OF 2011
LUCAS ONGAKI
ZACHARY OBWOCHA OMANDI ………………..….............…...……. APPLICANTS
-VERSUS-
NICHOLAS ATANDI …………………………………….….............…… DEFENDANT
RULING
The application/plaintiffs have brought a Notice of Motion application dated 26th September, 2011 seeking the following orders:-
“1. THAT this application be certified urgent and be heard on priority basis.
2. THAT PENDING the hearing of this application of this application interpartes the defendant/respondent whether by himself or acting through or in consort with this agents/servants or employees be restrained from trespassing into or in any way interfering with the plaintiffs’/applicants’ access into, use of, occupation, possession and ownership of the property Kisii Municipality Block III/388.
3. THAT PENDING the hearing of this suit defendant/respondent whether by himself or acting through, in consort with his agents, servants or employees be restrained from trespassing into or in any way whatsoever interfering with the plaintiffs’/applicants’ access into, use of, occupation of, possession of and/or ownership of the property Kisii Municipality Block III/388.
4. THAT the costs of this application be provided for…”
The application was certified urgent as per prayer 1 above on 30th September, 2011 and an order given for interpartes hearing on priority basis. The application is premised on Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 3, 3A and 63(c) and (e) of the Civil Procedure Act. The applicants have already taken the step of filing a substantive Civil Suit No. 205 of 2011.
The applicants allege that the defendant one, Nicholas Atandi trespassed into the suit property namely Kisii Municipality Block III/388 on 4th September, 2011 and chased away the plaintiffs’/applicants’ workers who were erecting a fence on the land. He is alleged to have confiscated the plaintiffs/applicants tools, barbed wire and cedar posts. On 20th September, 2011 the defendant is also alleged to have heaped and deposited sand and bricks on the road side near the suit property with the intention of commencing construction.
From the record, an affidavit of service sworn by one, James Moracha Ntabo (court process server) the respondent was served with the present application on 4th October, 2011. It is averred that the respondent received the notice but declined to append his signature.
On 11th October, 2011 Mr. Minda for the plaintiff/applicants argued the application before me. There was no appearance for the respondents. Mr. Minda argued that the applicants are the registered owners of the suit property and that the defendant/respondent had no right over the same. He argued that the acts of trespass by the defendant interfered with the applicants’ ownership rights conferred by section 27 and 28 of the Registered Land Act (Cap 300, Laws of Kenya). He relied on a certificate of official search for proof of ownership by the applicants.
I have considered the present application, carefully perused all the supporting documents and in the absence of opposition by the defendant, I allow the application in terms of prayer 3.
Ruling dated, signedanddelivered at Kisii this 27th day of October 2011.
R. LAGAT KORIR
JUDGE