[2017] KEHC 6492 (KLR)
The court found that the applicant failed to establish a prima facie case as required for the grant of an interlocutory injunction. The evidence did not demonstrate that the applicant would suffer irreparable harm incapable of being compensated by damages if the injunction was not granted. The respondent, as the...
Source-derived case information.
- Citation
- [2017] KEHC 6492 (KLR)
- Parties
- Applicant: Martin S. Mukhwana; Respondent: Brenda Nelima Mwibanda
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 97 of 2016
- Procedural Posture
- Land and Environment Case / Interlocutory Application for Injunction
- Outcome
- application dismissed with costs to the respondent
- Judges
- SN Mukunya
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Fraudulent Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin S. Mukhwana
Applicant
Brenda Nelima Mwibanda
Respondent
Procedural Posture
Land and Environment Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of an interlocutory injunction.
- 2 Whether the applicant will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant of the injunction.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case as required for the grant of an interlocutory injunction. The evidence did not demonstrate that the applicant would suffer irreparable harm incapable of being compensated by damages if the injunction was not granted. The respondent, as the registered proprietor, was entitled to possession unless fraud was proved, which had not been established at this stage. Consequently, the application for an injunction lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for an interlocutory injunction is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND & ENVIRONMENT CASE NO.97 OF 2016
MARTIN S. MUKHWANA………………..……..PLAINTIFF/APPLICANT
VERSUS
BRENDA NELIMA MWIBANDA………….DEFENDANT/RESPONDENT
RULING
[1]. The applicant filed the application herein under Order 13 Rule (1) and 2 of the Civil Procedure Act Chapter 21 Laws of Kenya 2010.
The applicant prays for restraining Order against the respondent by herself, agents and/or any party claiming under her from evicting the plaintiff from LR Bokoli/Kituni/1461 situated in Misikhu division pending the hearing and determination of this suit. His grounds for doing so are that the title deed was obtained through misrepresentation by the defendant respondent and that the plaintiff will suffer irreparable loss unless the orders sought are granted.
[2]. The respondent has opposed the application herein. She avers that she is the registered proprietor of LR Bokoli/Kituni/1461. That she bought the same with her own money. That the money came from a loan with M/s K-rep bank Ltd. The parties who were once married are now divorced.
[3]. Madam Barasa holding brief for Shikukule for the applicant argued that the suit land was bought by the applicant but was fraudulently registered in the name of the respondent. That the applicant should not be evicted from the suit land.
[4]. Mr. Kweyu Learned Counsel for the respondent in reply stated that the suit land is in the name of the respondent. That the application has not met the threshold of Giella Versus. Cassman Brown & Company Ltd [CA] [1968] 358 in that no prima facie case has been established and that the plaintiff has not shown that he will suffer irreparable damage incapable of being compensated by damages.
[5]. I agree with Mr. Kweyu. No prima facie case has been made out. Secondly, it has not been shown that if an injunction is not granted, the plaintiff will suffer an irreparable damage incapable of being settled by damages.
This application has no merits and is dismissed with costs to the respondents.
Ruling read in open court in presence of Mr. Anwar.
DATED at BUNGOMA this 6th day of April, 2017
S. MUKUNYA
JUDGE
In presence of:
Court Assistant: Gladys
Mr. Anwar for Mr. Kweyu for Respondent
Shikule for the respondent - absent