[2012] KEHC 217 (KLR)
The court found that the application was not res judicata because the relief sought differed from that in the previous application. The applicant established a prima facie case as the registered proprietor of the suit land, and the 1st defendant did not provide evidence to challenge the applicant's title or justify...
Source-derived case information.
- Citation
- [2012] KEHC 217 (KLR)
- Parties
- Plaintiff: Moses Saul Khamati; Defendant: Sebio Juma Kweyu; Defendant: Mumias Sugar Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 83 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Trespass, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Saul Khamati
Plaintiff
Sebio Juma Kweyu
Defendant
Mumias Sugar Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the application for a temporary injunction is res judicata.
- 2 Whether the applicant has established a prima facie case for the grant of a temporary injunction.
- 3 Whether the applicant's loss can be compensated by monetary damages.
Ratio Decidendi
The court found that the application was not res judicata because the relief sought differed from that in the previous application. The applicant established a prima facie case as the registered proprietor of the suit land, and the 1st defendant did not provide evidence to challenge the applicant's title or justify his actions. The loss suffered by the applicant—denial of access and use of his land—could not be adequately compensated by monetary damages. The balance of convenience favored the applicant, as the 1st defendant was found to be a trespasser. Consequently, the court granted the temporary injunction restraining the 1st defendant from interfering with the applicant's use and...
Court Disposition
application allowed
Orders
- A temporary injunction is granted restraining the 1st defendant, his agents, heirs and/or assigns from interfering with the plaintiff’s use and/or occupation of land parcel No. S.WANGA/BUKAYA/1221 pending the hearing and determination of the suit.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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MOSES SAUL KHAMATI ………………………..………..…… PLAINTIFF/APPLICANT
VERSUS
SEBIO JUMA KWEYU…………………….…………….1ST DEFENDANT/RESPONDENT
MUMIAS SUGAR CO. LTD. ………………………..…. 2ND DEFENDANT/RESPONDENT
RULING
The application by way of Notice of Motion dated 2. 3.2011 seeks orders that “pending the hearing of the suit, the defendant, his agents, heirs and/or assigns be restrained by an order of temporary injunction from interfering with the plaintiff’s use and/or occupation of land parcel No. S.WANGA/BUKAYA/1221. ”
The application is supported by the affidavit of the applicant, MOSES SAUL KHAMATI sworn on 28. 2.2011.
The applicant’s case according to the said affidavit is that he is the registered owner of land parcel No. S.WANGA/BUKAYA/1221. The applicant accuses the 1st defendant/respondent of ploughing the said parcel of land and planting sugarcane on the same, thereby denying the applicant access to the land. The applicant’s contention is that when he became registered as the proprietor of the Suitland, no inhibition and/or any other interest was registered in favour of the 1st defendant. The applicant has also stated that the actions of the 1st defendant have also prevented him from utilizing the land to grow maize for his family and for sale.
In opposition to the application, the 1st defendant/respondent filed the grounds of opposition dated 24. 10. 11 which state as follows:-
“1. That the application is incompetent, fatally defective andmisconceived.
2. That the application is bad in law and res judicata as the subject matter herein has been subject to litigation in this Honourable court vide application dated 21. 06. 2010.
3. That the application is otherwise frivolous, vexatious and an abuse of the process of this Honourable court.”
I will first tackle the issue whether the application is res judicata.
An earlier application which was dismissed had sought orders to restrain the defendants from entering a cane farming contract in respect of Land Parcel No. S.WANGA/BUKAYA/1221 (hereinafter suit land). The application at hand seeks orders to restrain the 1st defendant from interfering with the plaintiff’s use and/or occupation of the suit land. The subject matter is therefore different. The application is not res judicata.
The applicant has exhibited a Title Deed (annexture “MSK-1”) which shows that he is the registered owner of the suit land. This position is not controverted by any affidavit evidence by the respondent. Although it has been submitted that the applicant does not have a good title to the suit land and that the 1st defendant had a valid cane farming contract with the 2nd defendant by the time the applicant purchased the suit land, this is not supported by any evidence. It is also not clear in what capacity the 1st defendant is challenging the title held by the applicant.
On the application of the principle set out in the case of GELLA VS CASSMAN BROWN[1973] E.A 358I find that the applicant, as the holder of the title Deed has established a prima facie case with a probability of success. The 1st defendant has not denied interfereance with the applicant’s land. Denial of access to the land and the houses that stand thereon is a loss that cannot be compensated by monetary terms. In the absence of any evidence from the 1st defendant, the court has no doubts that would make it consider where the balance of convenience falls.
I agree with the applicant’s counsel’s submissions that it is the trespasser who should give way pending the determination of the dispute (see JAJ SUPER POWER CASH & CARRY LTD. VS NAIROBI CITY COUNCIL & 2 OTHERS CA NBI 111/2002. No submissions were made on the ground tht the application is incompetent. I have not seen any deffects in the application that would render the same to be deffective.
With the foregoing, I find the application has merits and I allow the same with costs.
Delivered, dated and signed at Kakamega this 18th day of December, 2012
B. THURANIRA JADEN
JUDGE