[2012] KEHC 4941 (KLR)
The court found that the applicant had established her status as the registered owner of the suit property by producing the title deed and certificate of official search. The respondent, having failed to respond or appear, did not challenge the applicant's ownership or demonstrate any legal or equitable interest in...
Source-derived case information.
- Citation
- [2012] KEHC 4941 (KLR)
- Parties
- Applicant: Memusi Ene Pesi; Respondent: Sonte Ole Pesi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 260 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction
- Outcome
- injunction granted in favour of the applicant; costs awarded to the applicant
- Judges
- SP Ouko
- Legal Topics
- Ownership of Land, Injunctive Relief, Trespass, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Memusi Ene Pesi
Applicant
Sonte Ole Pesi
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is the registered owner of the suit property and entitled to protection from trespass.
- 2 Whether the respondent has any legal or equitable interest in the suit property.
- 3 Whether the applicant is entitled to injunctive relief restraining the respondent from interfering with the property.
Ratio Decidendi
The court found that the applicant had established her status as the registered owner of the suit property by producing the title deed and certificate of official search. The respondent, having failed to respond or appear, did not challenge the applicant's ownership or demonstrate any legal or equitable interest in the land. The applicant's evidence of damage caused by the respondent, including unauthorized cutting of trees, construction, and destruction of a fence, was uncontroverted. Applying the principles for granting injunctive relief, the court held that the applicant had demonstrated a prima facie case with a likelihood of irreparable harm if the respondent's actions continued. The...
Court Disposition
injunction granted in favour of the applicant; costs awarded to the applicant
Orders
- The respondent is restrained by injunction from interfering with the applicant's use, occupation, and possession of CIS MARA/ROTIAN/35 as per paragraph 3 of the motion.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
16 paragraphs
THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.260 OF 2011
MEMUSI ENE PESI………………………………………APPLICANT/PLAINTIFF
VERSUS
SONTE OLE PESI…………………………………….RESPONDENT/DEFENDANT
RULING
The applicant has annexed to her affidavit sworn in support of the motion dated 23rd September, 2011, a certified photo copy of a title deed in respect of CIS MARA/ROTIAN/35 which is registered in her name. The applicant has explained that she inherited the suit property from her late husband, Itei Ole Pesi. The late Ole Pesi had a first wife who predeceased him. The first wife had a daughter who is the mother of the respondent.
Because the respondent was born out of wedlock, he was not welcome by his mother’s husband. He was brought up by the applicant until he turned ten (10) years or thereabout when he joined his mother. In 2009, the respondent approached the applicant to assist him with land for subsistence farming because of the bad blood between him and his step father. The applicant obliged and gave him one acre of the suit property. He made another request and a further one acre was granted.
In February, 2010, the respondent descended on the property and embarked on wanton cutting down of trees and proceeded to put up a semi-permanent house on the portions earlier given to him. The respondent also destroyed a fence on the suit property. He has not heeded the warning of the local chief.
Despite service with the application and with a hearing notice, the respondent did not respond or attend court when the application came up for inter partes hearing.
The applicant has demonstrated that she is the registered owner of the suit property by exhibiting the title deed and the certificate of search confirming this fact. The respondent has not rebutted these assertions or demonstrated the nature of his interest on the suit property. The applicant has also shown through photographs that the respondent has caused damage to the property without any justification.
The applicant’s prayers of injunctive relief are granted in terms of paragraph 3 of the motion. I award costs to the applicant.
Dated, Signed and Delivered at Nakuru this 29th day of February, 2012.
W. OUKO
JUDGE