[2021] KEELC 22 (KLR)
The court found that the applicant is in possession of a portion of the suit land and has established a prima facie case with a chance of success. The court held that if the applicant were evicted, he would likely suffer irreparable loss, and the balance of convenience favored preserving the status quo. Accordingly,...
Source-derived case information.
- Citation
- [2021] KEELC 22 (KLR)
- Parties
- Applicant: Nyamita Dulo Gershon; Respondent: Shem Odegi Tuju
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 288 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- temporary injunction granted
- Judges
- A Ombwayo
- Legal Topics
- Adverse Possession, Temporary Injunctions, Eviction, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyamita Dulo Gershon
Applicant
Shem Odegi Tuju
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for the grant of a temporary injunction restraining the respondent from interfering with the suit land.
- 2 Whether the applicant is entitled to protection from eviction pending the hearing and determination of the suit.
- 3 Whether the applicant has demonstrated a likelihood of suffering irreparable loss if the injunction is not granted.
Ratio Decidendi
The court found that the applicant is in possession of a portion of the suit land and has established a prima facie case with a chance of success. The court held that if the applicant were evicted, he would likely suffer irreparable loss, and the balance of convenience favored preserving the status quo. Accordingly, the court granted a temporary injunction restraining the respondent from evicting the applicant from the suit parcels until the suit is heard and determined.
Court Disposition
temporary injunction granted
Orders
- A temporary injunction is granted restraining the defendant from evicting the plaintiff from the suit parcels until the suit is heard and determined.
- Parties to comply with Civil Procedure Rules 2010 within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC CASE NO. 288 OF 2016
NYAMITA DULO GERSHON..........................................................PLAINTIFF/APPLICANT
VERSUS
SHEM ODEGI TUJU................................................................DEFENDANT/RESPONDENT
RULING
Nyamita Dulo Gershon has come to court against Shem Odegi Tuju with an application for an order of temporary injunction restraining Sem Odegu Tuju from trespassing into, erecting illegal structures or alienating, disposing off or otherwise interfering with the Plaintiff’s ownership quiet and peaceful possession and occupation and enjoyment of the suit plot or parcels of land known as L.R. NOS KISUMU GOD ABUORO/295 and KISUMU GOD ABUORO 331 within Kisumu County pending hearing of the suit.
The Plaintiff also prays that the defendant be stopped from threatening in any way the plaintiff with evictions. That the Police and County Commissioner Nyando sub-County to assist. That the court to declare the Plaintiff a legal owner of a portion of the suit land by way of adverse possession.
The application is based on grounds that the Plaintiff/applicant occupies a portion of the said suit lands which belonged to his late father. The transfer of the suit lands was done within is knowledge or notice by the transferor.
In the Supporting Affidavit the Plaintiff states that the parcels of land belonged to his father who passed away on 7/5/2003. He has been in occupation the land since 2007. He was informed that the land was sold to one Shem Odegu Tuju by his late father information he does not believe to be true. He states that the transfer was irregular null and void without letter of administration interstate being obtained.
I have considered the application, supporting affidavit, and replying affidavit and do find that the plaintiff is in possession of a portion of the suit land and therefore has established a prima facie case with a chance of success. Moreover, if evicted he is likely to suffer irreparable loss. The balance of convenience militates on granting an order to preserve the subject matter. I do grant a temporary injunction restraining the Defendant from evicting him from the suit parcels until the suit is heard and determined. Costs in the cause. The matter is fast-tracked for hearing. Parties to comply with Civil Procedure Rules 2010 within 30 days.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 1ST DAY OF OCTOBER, 2021
ANTONY OMBWAYO
JUDGE
This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.
ANTONY OMBWAYO
JUDGE