[2009] KEHC 1903 (KLR)
The court found that the applicant had established a prima facie case with a probability of success, demonstrated the likelihood of suffering irreparable harm if the injunction was not granted, and that the balance of convenience favoured the applicant. The respondent, having been served, failed to oppose the...
Source-derived case information.
- Citation
- [2009] KEHC 1903 (KLR)
- Parties
- Plaintiff: Malakwen Arap Kimaswai; Defendant: Willy Yator Rotich Kamuren
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 116 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction granted.
- Judges
- JL Osiemo
- Legal Topics
- Injunctive Relief, Adverse Possession, Land Sale Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malakwen Arap Kimaswai
Plaintiff
Willy Yator Rotich Kamuren
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from dealing with the suit land pending determination of the suit.
- 2 Whether the applicant has satisfied the conditions for grant of an interlocutory injunction.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success, demonstrated the likelihood of suffering irreparable harm if the injunction was not granted, and that the balance of convenience favoured the applicant. The respondent, having been served, failed to oppose the application. The court exercised its discretion to grant the temporary injunction as the applicant satisfied the established legal principles for such relief.
Court Disposition
Application for temporary injunction granted.
Orders
- A temporary injunction is issued restraining the defendant from encroaching, constructing, wasting, alienating, damaging, selling, charging or in any other manner dealing with parcels of land LR. No. 23100/3, LR. No. 23100/4 and LR. No. 23100/5 pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT ELDORET
CIVIL SUIT 116 OF 2009
MALAKWEN ARAP KIMASWAI .................................. PLAINTIFF
VERSUS
WILLY YATOR ROTICH KAMUREN .....................DEFENDANT
R U L I N G
Before me is an application by way of Chamber Summons dated 24th June, 2009 in which the Plaintiff/Applicant seeks orders that a temporary injunction do issue against the Defendant/Respondent restraining him from encroaching, constructing, wasting, alienating, damaging, selling or charging or in any other manner dealing with parcels of land LR. No. 23100/3, LR. No. 23100/4 and LR. No. 23100/5 pending the hearing and determination of this suit.
The application is based on the grounds as stated on the body of the Chamber Summons and supported by an affidavit sworn by the Applicant. The Respondent was served but did not file any paper in opposition to the application.
The facts which gave rise to this litigation as gathered from the affidavits and the pleadings briefly may be stated. By a Sale Agreement entered into between the Applicant and the Respondent on 13-2-96 the Respondent offered for sale and the Applicant agreed to purchase the suit parcels namely LR. No. 23100/3, LR. No. 23100/4 and LR. No. 23100/5 at the purchase price of Shs. 4,000,000/=. The Applicant paid the entire purchase price and took possession of the suit land and since then he has had uninterrupted possession to date. Despite the fact that the Respondent had received the whole of the purchase price, he failed to apply for the Land Control Board Consent. The Applicant has filed a suit by way of an Originating Summons seeking ownership through adverse possession.
Mr. Birech learned Counsel appearing for the applicant submitted that the Respondent was served with the Summons and has failed to file any papers to oppose the application and urged the Court to grant the orders as prayed. The power to grant or deny an order for injunction is within the discretion of the Court which discretion can only be interfered by the Appeal Court if the discretion was not exercised judiciously.
The conditions for the grant of an interlocutory injunction are: existence of probability of success; likelihood of irreparable harm which would not be adequately compensated for by damages and balance of convenience. The Applicant has satisfied the above principles and the application being not opposed the same is granted as prayed.
DELIVERED AND DATED AT ELDORET THIS 22ND DAY OF SEPTEMBER, 2009.
J. L. A. OSIEMO
JUDGE
In the presence of: