[2018] KEELC 3382 (KLR)
The court found that the applicant had established a prima facie case with a probability of success as she was in actual possession of the suit land and had her matrimonial home there. The respondent's claim that he had sold the land to a third party and was wrongly enjoined did not negate the applicant's occupation...
Source-derived case information.
- Citation
- [2018] KEELC 3382 (KLR)
- Parties
- Applicant: Narikurmurani Shai; Respondent: Letingui Ole Saiyialel
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 516 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Injunctive Relief, Adverse Possession, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Narikurmurani Shai
Applicant
Letingui Ole Saiyialel
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of an injunction.
- 2 Whether damages would be an adequate remedy in the circumstances.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success as she was in actual possession of the suit land and had her matrimonial home there. The respondent's claim that he had sold the land to a third party and was wrongly enjoined did not negate the applicant's occupation and interest. The court determined that granting the injunction was necessary to preserve the applicant's possession and prevent disruption, especially since the respondent disclaimed further interest in the land. Consequently, the application for injunction was allowed with costs to the applicant.
Court Disposition
application allowed
Orders
- The application dated 21st July, 2017 is allowed.
- An injunction is granted restraining the respondent from evicting, alienating, or disposing the applicant from Land Parcel Reference No. TRANS MARA/ISAMPIN/92.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 516 OF 2017
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT
AND
IN THE MATTER OF LAND PARCELS REF. NO. TRANS MARA/ISAMPIN/92
BETWEEN
NARIKURMURANI SHAI..........................APPLICANT
-VERSUS-
LETINGUI OLE SAIYIALEL...............RESPONDENT
RULING
The Application before me is the Notice of Motion dated 21st July, 2017 in which the Plaintiff inter alia sought for orders of injunction restraining the Respondents from evicting, alienating, disposing the Applicant from Land Parcel Reference No. TRANS MARA/ISAMPIN/92. The Application was supported by the Affidavit of the Plaintiff as no grounds in supporting of the same was stated by the Applicant.
In his supporting affidavit the Applicant has been in continuous occupation of the suit land since 1994 when the Plaintiff came claiming that he is the Registered Owner of the land.
The Applicant avers that she has put her matrimonial home on the property and that it was only in 2013 that the Respondent claimed to have title on the suit land.
The Respondent has opposed the application and filed a replying affidavit where he avers that it is the Applicant who has trespassed on his land. He stated that he sold the land to Trans Mara Sugar Company Limited and hence he is wrongly enjoined in the proceedings.
When the application came for hearing before me the parties agreed that the same shall be disposed of by way of written submissions but despite being given the chance neither of the parties filed and I therefore relied on the pleadings.
At this juncture what is there for determination is whether the plaintiff has established a prima facie case with a probability of success and whether damages will be adequate compensation.
The suit here relates to a parcel of land where the Applicant states that she is in occupation of the suit land and has matrimonial home on the same. The respondent in his replying affidavit stated that he has sold his land to a third party and he is thus sued wrongly.
From the pleadings before me, I find that the Applicant has established a prima facie case with a probability of success. She is in actual possession and has her matrimonial home. I will grant her the orders sought so as not to disrupt her normal process since the Applicant states that he has no interest on the suit land.
From the foregoing therefore I will allow the application dated 21st July, 2017 with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 4TH day of MAY, 2018
Mohammed Noor Kullow
Judge
4/5/18
In the presence of:
Mr Shem Khayo holding brief for Nyauki for defendant/respondent
Ms Cheptoo holding brief for Otieno for the applicant
CA:Chuma
Mohamed Noor Kullow
Judge
4/5/18