[2015] KEELC 419 (KLR)
The court found that the circumstances under which the plaintiff entered the suit property could only be determined at trial. While the defendant alleged recent trespass, the plaintiff claimed long-term possession. Given the conflicting evidence and the need to preserve the status quo, the court held that the...
Source-derived case information.
- Citation
- [2015] KEELC 419 (KLR)
- Parties
- Plaintiff: Ngumbao Chea Kalama; Defendant: Karisa Cheti Masha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2014
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Plaintiff's application for temporary injunction allowed.
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Adverse Possession, Quiet Enjoyment, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngumbao Chea Kalama
Plaintiff
Karisa Cheti Masha
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit property pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case for the grant of an injunction.
- 3 Whether the balance of convenience favors the grant of the injunction.
Ratio Decidendi
The court found that the circumstances under which the plaintiff entered the suit property could only be determined at trial. While the defendant alleged recent trespass, the plaintiff claimed long-term possession. Given the conflicting evidence and the need to preserve the status quo, the court held that the plaintiff should be allowed to continue occupying the property pending the hearing of the suit. The court noted that the balance of convenience favored maintaining the current occupation, as it could not conclusively determine the existence of a prima facie case or the likelihood of irreparable harm on the evidence before it. Accordingly, the application for a temporary injunction...
Court Disposition
Plaintiff's application for temporary injunction allowed.
Orders
- A temporary injunction is issued restraining the defendant from evicting, interfering with the plaintiff's quiet enjoyment of plot no. 317/Tezo/Roka Settlement Scheme and from selling, alienating or dealing with the suit land until the hearing and final determination of the suit.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.54 OF 2014
NGUMBAO CHEA KALAMA........................................................PLAINTIFF
=VERSUS=
KARISA CHETI MASHA............................................................DEFENDANT
R U L I N G
Introduction:
The Application before me is the one dated 14th March 2014 seeking for the following orders:
(a) Pending the hearing and final hearing of this Application inter partes, this Honorable Court be pleased to issue a temporary injunction restraining the 2nd Respondent, whether by himself, servants and/or agents from evicting, interfering with the Applicant's quiet enjoyment of plot no. 317/Tezo/Roka Settlement Scheme (hereinafter referred to as the suit land) and from selling, alienation or in any manner dealing with the suit land until hearing and final determination of this suit.
(b) The costs of this Application be in the cause.
The Plaintiff's/Applicant's case:
In his Supporting Affidavit, the Applicant has deponed that the Respondent's father was allocated the suit property; that the Respondent, his late father and family have never occupied, used or possessed the suit land and that he has been in possession of the said land since 1978.
According to the Applicant, the Respondent and his father have always known that he is occupying, possessing and using the suit property peacefully and without interruption.
The Defendant's/Respondent's case:
In the Replying Affidavit, the Respondent has deponed that his father was allocated the suit property in the year 1978 and that prior to the demise of his father in 1993, he had planted coconut palms on the suit property.
It is the Defendant's case that in the year 2013, the Applicant trespassed on the suit property and erected illegal structures thereon whereafter he filed a suit in Kilifi PMCC No. 297 of 2013.
It is the Defendant's deposition that as a squatter, the Plaintiff cannot purport to have a superior title.
I have considered the brief submissions filed by the parties.
Analysis and finding:
The Plaintiff is seeking to be declared the owner of the suit property having been in possession of the same for a long period of time.
Although the Defendant claims that the Plaintiff trespassed on the land in the year 2013, the circumstances under which the Plaintiff entered the suit can only be considered during trial.
In the circumstances, the Defendant should allow the Plaintiff to continue occupying the suit property pending the hearing of the suit. The balance of convenience tilts in favour of the Defendant considering that the court cannot, on the evidence before it, determine if the Plaintiff has established a prima facie case or nor or if he is likely to suffer irreparable damage.
For those reasons I allow the Plaintiff's Application dated 14th March, 2014 with no orders as to costs.
Dated and delivered in Malindi this 19th day of June,2015.
O. A. Angote
Judge