[2018] KEELC 231 (KLR)
The court found that the applicant had established a prima facie case by demonstrating possession and development of the suit land, and that the respondent's threatened actions would cause irreparable harm to the applicant's permanent developments. The court was not persuaded at this interlocutory stage by the...
Source-derived case information.
- Citation
- [2018] KEELC 231 (KLR)
- Parties
- Applicant: Manuel Wanyonyi Musomele; Respondent: Francis Wanyonyi Omina
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 181 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Land Sale Disputes, Bona Fide Purchaser, Specific Performance, Forgery Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manuel Wanyonyi Musomele
Applicant
Francis Wanyonyi Omina
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from interfering with the suit land pending determination of the suit.
- 2 Whether the applicant has demonstrated a prima facie case with a probability of success.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the applicant had established a prima facie case by demonstrating possession and development of the suit land, and that the respondent's threatened actions would cause irreparable harm to the applicant's permanent developments. The court was not persuaded at this interlocutory stage by the respondent's allegations of forgery and non-payment, noting that these are substantive issues for trial. The balance of convenience was found to favour the applicant, as refusal of the injunction would expose him to loss of his home and source of income. Accordingly, the court granted an interlocutory injunction restraining the respondent from interfering with the applicant's...
Court Disposition
interlocutory injunction granted
Orders
- An order of injunction is granted restraining the defendant from in any manner interfering with the plot occupied by the plaintiff pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 181 OF 2016
MANUEL WANYONYI MUSOMELE.................APPLICANT/PLAINTIFF
VERSUS
FRANCIS WANYONYI OMINA................RESPONDENT/DEFENDANT
RULING
1. The application dated 19th December, 2016 seeks for orders for injunction to restrain the defendant from interfering in any manner with the plaintiff’s plot of land known pending the hearing of the suit.
2. The grounds on which the said application is made are that the plaintiff lawfully bought his parcel of land from the defendant as a bona fide purchase and paid the agreed amount of consideration of Kshs.14,000/= in cash on 31/1/2005 and that the plaintiff’s peaceful occupation of the said Plot No. Kapkoi SFT Scheme Plot No. 147 is being threatened unlawfully by the defendant who wants to demolish part of the plaintiff’s plot to carve out an access road through it against the original agreement by the parties made on 31/1/2005. It is averred that the plaintiff would suffer irreparable injury if the injunction order is refused since the plot is his place of abode and source of income.
3. The supporting affidavit is sworn by the plaintiff of 19/12/2016 was filed with the application. In that affidavit the deponent avers that though he is the bona fide the proprietor of the suit premises the same have not been transferred to him formally. He avers that he took possession of the land upon payment of the agreed consideration and started developing the same with the permission of the defendant; however on 10/11/2016 the defendant threatened to demolish part of his premises for the purposes of establishing a road of access for other purchasers through the plaintiff’s plot and when the plaintiff engaged the defendant he turned a deaf ear to him.
4. The respondent/defendant filed replying affidavit sworn on 13/1/2017. He deponed that he is the lawful allottee of Plot No. 147, Kapkoi Settlement Scheme; that in reply to paragraph 3, on 31st January, 2005 he intended to sell a plot measuring 50feet by 100 feet to the applicant at a consideration of Kshs.14,000/=, out of which he paid the sum of Kshs.7,000/= upon execution and Kshs.3,000/= on 4th February, 2005, a copy of the agreement is annexed and marked ”FWO-1”; that it is not true that the applicant paid the entire sum of Kshs.14,000/= and his annextures marked “MWM-1” is a forgery; that the plaintiff never paid the balance of Kshs.4,000/= which remains unpaid to date and which he has refused to pay all along; that later on the plaintiff entered his land without his consent and took possession; that in the meantime he also sold portions of the land to other purchasers and created a 3 feet wide road for their use; that in 2016, the plaintiff sold a plot measuring 53 feet by 100 feet to a third party essentially blocking the access road used by the other occupants of the plot; that Plot No. 147 is agricultural land and still registered in favour of the Settlement Fund Trustees (SFT); that the plaintiff’s supporting affidavit are denied and the plaintiff is misusing the police to perpetuate a fraud; that the plaintiff having lied to the court and uttered false and forged documents cannot be entitled to any equitable remedy; that the defendant is advised by Patrick S. Juma, who drafted in his own handwriting and also witnessed the agreement of 31st January, 2005; that the annexed tendered by the plaintiff is not the agreement Patrick S. Juma actually drafted and that Joshua Nakitare, too who was a witness to the agreement of 31st January, 2005 denies the plaintiff’s purported agreement, marked “MWM-1” and bother confirm that is the copy referred to hereinbefore as “FWO-1”.
5. The applicant filed his submissions on 30/10/2018 and the respondent on 29/10/2018.
6. I have considered the submissions of the parties. It is the averment of the defendant that the plaintiff only purchased a plot measuring 50 by 100 feet yet he has purported to sell a portion measuring 53 by 100 feet thus effectively including a road of access measuring 3 feet wide in the sale. It is also the defendant’s position that the documents filed by the plaintiff are forged.
7. I have seen the developments exhibited by the plaintiff in his supplementary affidavit dated 30/10/2018 showing some houses built on what is said to be the suit land. They are permanent development. They stand to be affected if the orders sought are not granted.
8. In the circumstances I consider that the balance of convenience in this application lies in favour of granting the orders of injunction sought.
9. I therefore grant an order of injunction restraining the defendant from in any manner interfering with the plot occupied by the plaintiff pending hearing and determination of the suit.
Dated, signed and delivered at Kitale on this 3rd day of December, 2018.
MWANGI NJOROGE
JUDGE
3/12/2018
Coram:
Before -Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bisonga holding brief for Nyamu for plaintiff
N/A for the defendant
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
3/12/2018