[2020] KEELC 3297 (KLR)
The court found that the applicants failed to establish a prima facie case with a probability of success, as they did not provide evidence of the alleged fraudulent letter or demonstrate how the fraud occurred. The burden of proof for fraud lies with the party alleging it, and in the absence of supporting...
Source-derived case information.
- Citation
- [2020] KEELC 3297 (KLR)
- Parties
- Applicant: Mosoito Ole Koilel & 47 Others; Respondent: Sipoi Partei Ntiyia & 2 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 47 of 2019
- Procedural Posture
- Interlocutory Application / Ruling on Application for Temporary Injunction
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Injunctive Relief, Fraudulent Transfer of Land, Burden of Proof, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mosoito Ole Koilel & 47 Others
Applicant
Sipoi Partei Ntiyia & 2 Others
Respondent
Procedural Posture
Interlocutory Application / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant the grant of a temporary injunction.
- 2 Whether the applicants have demonstrated that damages would not be adequate compensation.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the applicants failed to establish a prima facie case with a probability of success, as they did not provide evidence of the alleged fraudulent letter or demonstrate how the fraud occurred. The burden of proof for fraud lies with the party alleging it, and in the absence of supporting documentation or particulars, the court could not grant the orders sought. Consequently, the application for a temporary injunction was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC NO. 47 OF 2019
MOSOITO OLE KOILEL & 47 OTHERS..............................PLAINTIFFS/APPLICANTS
VERSUS
SIPOI PARTEI NTIYIA & 2 OTHERS............................DEFENDANTS/RESPONDENTS
RULING
The Applicants had by a Notice of Motion dated 18th September, 2019 sought for the following orders: -
1. Spent
2. Spent
3. That a temporary injunction do issue, restraining the defendants herein by herself, her servants, agents or anyone acting under her or under her authority, or otherwise whosoever from dealing with CIS-MARA/NAILOKLOK/131 pending the hearing and determination of this application interparties.
4. That the costs of this application be borne by the defendant/respondent.
The Application was based on the grounds that the Applicant is the owner of land parcel CIS MARA/NAILOKLOK/131 in which the 1st and 2nd Respondents had fraudulently transferred to themselves which prior to the application was disputed between the parties. It is contended by the Applicants that by a letter dated 8th October, 2008 which was purported that committee members of Ndero Group Ranch issued to authorities the said transfer was a forgery contrary to the decision of the District Land Adjudication Officer.
The Application was opposed by the 1st and 2nd Respondents by way of a replying affidavit that was filed by the 2nd Respondent. The Respondent contend that the transfer of the said land was done with the consent of the group members and that there was no fraud involved in the matter.
I have considered the application before me and the submissions filed by the parties. This being an interlocutory application seeking orders of injunction the grounds upon which such orders are granted is now well settled. As to whether the applicants have established a prima facie case, whether damages are adequate compensation and in whose favour does the balance of convenience tilts.
The applicants alleged that the suit land was transferred to the 1st and 2nd respondent via a fraudulent letter dated 8th October, 2008. From the pleadings the applicants have not even attached a copy of the said letter or how the alleged fraud resulting in the alleged transfer was done. For a party to allege that there was fraud he must be able to discharge the burden in proving that the same took place in the first instant and in the absence of the above I find that the applicants have not satisfied the first ground to warrant the grant of orders of injunction which is to establish a prima facie case with a probability of success.
Having stated that the applicants have failed to establish a prima facie case I find that the application lacks merit and I thus dismiss the same with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 25th day of February, 2020.
Mohammed Kullow
Judge
25/2/2020
In the presence of: -
CA:Chuma/Kimiriny
Mr Kiruti holding brief for Onduso for the Plaintiff/Applicant
Ms Karia holding brief for Maritim for 1st and 2nd defendants