[2016] KEELC 661 (KLR)
The court found that the plaintiff is the registered owner of the suit properties and that the defendants, despite being family members, have no legal right to evict her or interfere with her possession. The defendants failed to file any response or demonstrate any entitlement to the properties. Applying the...
Source-derived case information.
- Citation
- [2016] KEELC 661 (KLR)
- Parties
- Plaintiff: Monical Mbera Achuti; Defendant: Zablon Achuti; Defendant: Henry Kenyanya Achuti; Defendant: Francis Achuti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case119 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for interlocutory injunction allowed.
- Judges
- MA Silau
- Legal Topics
- Injunctive Relief, Eviction, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monical Mbera Achuti
Plaintiff
Zablon Achuti
Defendant
Henry Kenyanya Achuti
Defendant
Francis Achuti
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction against the defendants.
- 2 Whether the plaintiff stands to suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit properties and that the defendants, despite being family members, have no legal right to evict her or interfere with her possession. The defendants failed to file any response or demonstrate any entitlement to the properties. Applying the principles in Giella vs Cassman Brown, the court held that the plaintiff had established a prima facie case, stood to suffer irreparable harm, and that the balance of convenience favoured her. Consequently, the court granted the interlocutory injunction restraining the defendants from accessing or visiting the suit properties until the conclusion of the suit, and allowed the plaintiff...
Court Disposition
Application for interlocutory injunction allowed.
Orders
- Defendants are restrained by injunction from accessing or visiting Dundori/Lanet Block 5/2360 and 2362 until conclusion of the suit.
- Plaintiff is at liberty to take over and occupy the suit premises to the exclusion of the defendants for the duration of the suit.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 119 OF 2016
MONICAL MBERA ACHUTI …………....…..…..PLAINTIFF
VERSUS
ZABLON ACHUTI …………………………..1ST DEFENANT
HENRY KENYANYA ACHUTI …………….2ND DEFENDANT
FRANCIS ACHUTI …………………..……3RD DEFENDANT
RULING
(Plaintiff owning suit land; defendants chasing her out; application to injunct defendants from suit land allowed).
1. The plaintiff in this case is the wife of the 1st defendant. The 2nd defendant is her biological son whereas the 3rd defendant is her step-son. She has pleaded that she is the registered owner of the land parcels Dundori/Lanet Block 5/2360 and 2362 (New Gakoe) (the suit properties). It is averred that on 27 March 2016, the defendants without any colour of right proceeded to evict her from the suit properties and she has now been forced to rent a house. In the suit, she has asked for orders of permanent injunction against the defendants and all those who claim under them.
2. Together with the suit, the plaintiff filed an application seeking orders to have the defendants restrained by an order of injunction from accessing or visiting the suit properties. In her supporting affidavit, the plaintiff has averred that the defendants have accused her of witchcraft and proceeded to evict her. She annexed title deeds showing that she owns the suit properties.
3. Despite being served, the defendants did not file anything to oppose the motion.
4. I have considered the matter. In an application of this nature, the court considers whether the applicant has laid out a prima facie case with a probability of success; whether the applicant stands to suffer irreparable loss if the injunction is not granted; and if in doubt, the application will be decided on a balance of convenience. These principles were laid out in the case of Giella vs Cassman Brown (1973) EA 358.
5. I have seen that the plaintiff owns the suit properties. The matter is of course a little complicated by virtue of the fact that the defendants appear to be her family and could be on the land by virtue of that relationship. However, the defendants have absolutely no right to evict the plaintiff from property that she owns. If they are disturbing the plaintiff on property that the plaintiff owns, the relationship between them takes a backseat. The defendants have not tabled anything to refute the claims of the plaintiff and have not demonstrated that they are entitled to evict the plaintiff from property that she owns.
6. I therefore allow this application. I order the defendants to stay away from the suit properties until the conclusion of this suit. The plaintiff is at liberty to take over the suit premises and be in occupation for the duration of the suit to the exclusion of the defendants.
7. The plaintiff shall also have the costs of the application.
8. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 12th day of July, 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :
No appearance on part of M/s S.M. Nyagaka & Co. for applicant but applicant present.
N/A on part of defendants/respondents who have not entered appearance.
Court Assistant : Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU