[2024] KEELC 4326 (KLR)
The court found that the application for a temporary injunction was unopposed and that the applicant had demonstrated sufficient grounds for preserving the status quo of the suit land. The applicant provided evidence of possession and development of the land, as well as ongoing interference by the respondent....
Source-derived case information.
- Citation
- [2024] KEELC 4326 (KLR)
- Parties
- Applicant: Simon Omela Ogutu; Respondent: Salina Aoko Arogo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons E004 of 2024
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction allowed.
- Judges
- E Asati
- Legal Topics
- Interlocutory Injunctions, Preservation of Status Quo, Trespass, Land Possession, Irreparable Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Omela Ogutu
Applicant
Salina Aoko Arogo
Respondent
Procedural Posture
Originating Summons / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of a temporary injunction restraining the respondent from interfering with the suit land pending determination of the suit.
- 2 Whether the applicant would suffer irreparable injury not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favours the grant of the injunction.
Ratio Decidendi
The court found that the application for a temporary injunction was unopposed and that the applicant had demonstrated sufficient grounds for preserving the status quo of the suit land. The applicant provided evidence of possession and development of the land, as well as ongoing interference by the respondent. Applying the principles in Giella v Cassman Brown, the court held that the applicant had established a prima facie case and that the balance of convenience favoured granting the injunction to prevent irreparable harm pending the determination of the main suit.
Court Disposition
Application for temporary injunction allowed.
Orders
- An order of temporary injunction is issued restraining the respondent by herself or her agents from cutting down trees, constructing, demolishing buildings, destroying any property on the suit land, or interfering with the plaintiff’s use thereof in any way, pending hearing and determination of the suit.
- Costs to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
Ogutu v Arogo (Enviromental and Land Originating Summons E004 of 2024) [2024] KEELC 4326 (KLR) (21 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4326 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisumu
Enviromental and Land Originating Summons E004 of 2024
E Asati, J
May 21, 2024
Between
Simon Omela Ogutu
Applicant
and
Salina Aoko Arogo
Respondent
Ruling
1. This ruling is in respect of the Notice of Motion application dated 14th February, 2024. The application seeks substantially for an order temporary conservatory orders restraining the Respondent by themselves, agents, proxies or anybody acting through them from cutting trees, constructing, demolishing buildings and/or interfering with the Plaintiff’s properties/possession/use of the suit land pending hearing and determination of the suit.
2. The application was not opposed or respondent to by the Respondent in any way.
3. I have read the Affidavits of Service filed. The same show that the Respondent was served with the application and on 22nd April, 2024, she was served with a hearing notice dated 20th April, 2024 for hearing of the application on 21st May, 2024. On 21st May, 2024 there was no attendance by or on behalf of the Respondent.
4. Counsel for the Applicant prayed that the application be allowed as the same was unopposed.
5. The grounds for grant of an interlocutory order of injunction as laid down in the case of Giella –vs- Cassman Brown Co. Ltd (1973) 358 are that the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the case on a balance of convenience.
6. No grounds are shown on the face of the Notice of Motion in support of the application. However, in the Supporting Affidavit, the Applicant states that he entered the suit land parcel No. Kisumu/buoye/1864 in the year 1988, build on it and planted trees. That the Respondent who is his neighbour has now descended on the said property and are cutting down trees, piling building materials and that he fears that his house may be demolished.
7. The photographs attached to the Supporting Affidavit show growing trees and others already cut down.
8. Given that the application is unopposed, I find that the Applicant has demonstrated sufficient grounds for preserving the status quo of the suit land and the property thereon pending hearing and determination of the suit (Originating Summons).I therefore allow the application as follows:-i.An order of temporary injunction is hereby issued restraining the Respondent by herself or her agents from cutting down trees, constructing, demolishing buildings or destroying any property on the suit land or interfering with the Plaintiff’s use thereof in any way, pending hearing and determination of the suit (Originating Summons).ii.Costs to the Applicant.Orders accordingly.
RULING DATED AND SIGNED AT KISUMU, READ VIRTUALLY THIS 21ST DAY OF MAY, 2024 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGEIn the presence ofObiero for the Applicant.No appearance for the Respondent.