[2010] KEHC 708 (KLR)
The court found that the applicant failed to establish a prima facie case with a probability of success, as required for the grant of an interlocutory injunction. The applicant did not provide evidence linking the respondents' cane farming contracts to his land parcel No. S/WANGA/BUKAYA/1221, nor did he address the...
Source-derived case information.
- Citation
- [2010] KEHC 708 (KLR)
- Parties
- Applicant: Moses Saul Khamati; Respondent: Sebio Juma Kweya; Respondent: Mumias Sugar Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 83 of 2010
- Procedural Posture
- Chamber Summons / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Interlocutory Injunctions, Burden of Proof, Land Ownership Disputes, Cane Farming Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Saul Khamati
Applicant
Sebio Juma Kweya
Respondent
Mumias Sugar Co. Ltd.
Respondent
Procedural Posture
Chamber Summons / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success to warrant the grant of an interlocutory injunction.
- 2 Whether the applicant has demonstrated the likelihood of suffering irreparable harm if the injunction is not granted.
- 3 Whether the contracts between the respondents relate to the applicant's land parcel No. S/WANGA/BUKAYA/1221.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case with a probability of success, as required for the grant of an interlocutory injunction. The applicant did not provide evidence linking the respondents' cane farming contracts to his land parcel No. S/WANGA/BUKAYA/1221, nor did he address the respondents' evidence showing the contracts related to other plots. Furthermore, the contracts had already been executed, and the applicant did not demonstrate any irreparable harm he would suffer if the injunction was not granted. Consequently, the application was dismissed as misguided and lacking merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 21.6.2010 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL SUIT NO. 83 OF 2010
MOSES SAUL KHAMATI ……………………PLAINTIFF/APPLICANT
VERSUS
SEBIO JUMA KWEYU ………...… 1ST DEFENDANT/RESPONDENT
MUMIAS SUGAR CO. LTD. ……. 2ND DEFENDANT/RESPONDENT
R U L I N G
1. I have before me a Chamber Summons dated 21. 6.2010. It is premised on the Provisions of Order 39 Rule 1 (a) 1 (2) and 2 (a) of the Civil Procedure Rules. An injunction is sought to restrain the Defendants/Respondents from “entering into a cane farming contract in respect of Land Parcel No. S/WANGA/BUKAYA/1221”. It is the Applicant’s case that he is the registered proprietor of that parcel of land and that the 1st Respondent without any colour of right has purported to begin negotiations with the 2nd Defendant to hire the land for sugar cane planting.
2. In a Replying Affidavit sworn on an unclear date but filed on 26. 7.2010, the case for the 1st Respondent is that the Application is bad in law, and an abuse of the process of the court. That whereas he has a contract with the 2nd Defendant, the said contract is limited to the use of plot Nos. 3 and 22 at Bukaya and not the Applicant’s parcel of land. Further that, the contracts with the 2nd Defendant have already been executed, and the land ploughed ready for planting and so the prayers sought have been overtaken by events.
3. The Respondent has also urged the point that he has leased land from one Alexander Johnny Obonyo (deceased) and that his family is aware of the leasehold interest.That the Applicant has no lawful claim to the land parcels belonging to that family and so his claim is unmerited.
4. On my part, the matter portends no difficulty; he who alleges must prove. In the interlocutory stage however, the Applicant must establish a prima facie case with a probability of success. What is before me however, is nothing close to that. The Affidavit in support, short and brief as it is, raises no issue that should warrant grant of the orders sought. If the Respondents have a contract between them, what is the interest of the Applicant in it? He argues that his land parcel No. 1221 may be the land upon which the contract for cane farming may be premised. He gives no evidence of any kind to support such a serious issue. He has also not chosen to respond to the fact that the Respondent has exhibited three Cane Farming Contracts between himself and the 2nd Defendant.
5. The contracts refer to plots Nos. 206A and 206B. He has also exhibited payment schedules that refer to Plot No. 9 and Plot No. 10. The Applicant has not stated what all those documents have to do with his land parcel No.1221.
6. In any event, I agree with the Respondent that once the contracts were executed as they clearly were, then an injunction in the nature of the one sought by the Applicant cannot be granted.
7. The Applicant has also failed to demonstrate what damage he stands to suffer if the injunction is not granted and so sadly, on the whole, the Application dated 21. 6.2010 is completely misguided. It is dismissed with costs to the Respondent.
8. Orders accordingly.
Delivered, Dated and signed at Kakamega this 13th day of October, 2010
ISAAC LENAOLA
J U D G E