[2005] KEHC 2854 (KLR)
The court found that the applicant had established a prima facie case with a probability of success by producing evidence of ownership of Garissa/Block/105 and showing that the defendant's structures were not his. The surveyor's report confirmed that the disputed plots were separate and distinct, undermining the...
Source-derived case information.
- Citation
- [2005] KEHC 2854 (KLR)
- Parties
- Plaintiff: Nadhif Jama Adan; Defendant: Shariff Abdi Hassan
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 202 of 2004
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application (chamber Summons) for Injunction and Eviction
- Outcome
- Application allowed. Orders granted as prayed in the chamber summons with costs to the applicant.
- Judges
- PJ Ransley
- Legal Topics
- Injunctive Relief, Eviction Orders, Ownership Disputes, Trespass, Survey Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nadhif Jama Adan
Plaintiff
Shariff Abdi Hassan
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application (chamber Summons) for Injunction and Eviction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of a temporary injunction and eviction order.
- 2 Whether damages would be an adequate remedy for the applicant if the injunction is not granted.
- 3 Whether the structures erected on Garissa/Block/105 by the defendant are illegal and justify a mandatory injunction for demolition.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success by producing evidence of ownership of Garissa/Block/105 and showing that the defendant's structures were not his. The surveyor's report confirmed that the disputed plots were separate and distinct, undermining the respondent's claim of allocation to a different plot. The court held that damages would not be an adequate remedy for the applicant, given the ongoing trespass and interference with possession. Consequently, the court granted the orders sought in the chamber summons, including temporary injunctions restraining the defendant from interfering with the property, demolition of illegal...
Court Disposition
Application allowed. Orders granted as prayed in the chamber summons with costs to the applicant.
Orders
- A temporary injunction restraining the defendant, his agents, servants or employees from entering upon, wasting, digging on, excavating, fencing, erecting any structure, or otherwise interfering with the plaintiff's possession of Garissa/Block/105, enforced by the Officer Commanding Garissa Police Station.
- A temporary injunction compelling the demolition of any illegal structure unlawfully built by the defendant, his servants or agents on Garissa/Block/105, enforced by the Officer Commanding Garissa Police Station pending hearing and determination of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI(NAIROBI LAW COURTS)
CIVIL SUIT NO. 202 of 2004
NADHIF JAMA ADAN …………..….………….. …………..PLAINTIFF
VERSUS
SHARIFF ABDI HASSAN …………..…………..…………. DEFENDANT
RULING
On the 21st July, 2004 the Chamber Summons of the 2nd March, 2004 filed by the Applicant herein came before Mr. Justice Lenaola for hearing when the following consent order was recorded.
(3) THAT a temporary injunction do issue restraining the Defendant by himself, his agents, servants or employees from entering upon, wasting, digging on, excavating, fencing and erecting upon, wasting digging on, excavating, fencing and erecting any structure and whatsoever from interfering and disrupting the Plaintiff, his agents or servants from enjoying possession of the property title. Garissai/Township/105, which order, be enforced by the Officer Commanding Garissa Police Station.
(4) THAT a temporary injunction do issue compelling the demolishment of any illegal structure unlawfully built by the Defendant, his servants or agents on the suit premises property title. Garissai/Township/105, which order, be enforced by the Officer Commanding Garissa Police Station pending the hearing and determination of this application.
(5) THAT this Honourable court do issue an order compelling the Defendant his agents, servants to vacate the suit premises title. Garissai/Township/105 forthwith. Pursuant to that order a letter dated the 22nd September, 2004 was sent to the Registrar of the High Court enclosing a copy of a letter dated the 15th September, 2004 from the Provincial Surveyor North Easter Province.
This report shows that Garissa/Block/105 and Garissa/Block/140 are separate plots some half a kilometer away from each other. Block 105 is opposite Garissa Primary School has a two storey building on it and temporary structures made of iron sheet, which are used as kioks. So far as plot GSA/792 is concerned this could not be traced in the Registry Index Map.
Mr. Wachira for the Defendant submitted that the report was inadequate and did not give the history of the plots. Further there was nothing to show the structures are illegal, and that the order sought amounted to an eviction order; In order to succeed the Applicant must show that he has a prima facie case with a probability of success and that damages would not be an adequate remedy. When someone has trespassed on to others land except in exceptional circumstances a court will not permit such trespass. In this case the applicant has produced evidence that he is the owner of plot Garissa/Block/105. What the Respondent relies on are letters showing he was allocated a plot referred to as GSA/792. The Letter of Allotment issued to him on the 6th January, 1993 is not specific and refers to a plot called B.C.R. Plot Garissa Town. The Respondent is the registered proprietor of Plot No. Garissa/Township/40. I am of the view that the surveyor’s report conforms to the terms of the court order.
From this it is obvious that plots 105 and 40 are separate and distinct. The assumption by the Respondent that plot 105 must be another property elsewhere and not plot GRA/792 is clearly not true. The Applicant has established that prima facie he is the owner of the plot 105 and that the metal sheet erections on it are not his. The Applicant has therefore established a prima facie case with a probability of success and in my view damages would not be an adequate remedy. In the result I make the order asked for on the Chamber Summons of the 2nd March, 2004 with costs to the Applicant. The Plaintiff to file in court an undertaking as to damages
Dated and delivered at Nairobi this 19th day of May,2005
P.J. R ANSLEY
JUDGE