[2017] KEELC 1007 (KLR)
The court found that the applicant had established a prima facie case with a probability of success based on the exhibited sale agreement and evidence of possession and cultivation of the suit land. The court held that, at the interlocutory stage, it is not required to make final determinations on the merits but to...
Source-derived case information.
- Citation
- [2017] KEELC 1007 (KLR)
- Parties
- Plaintiff: Paul Juma Chebus; Defendant: Moses Kapkitui; Defendant: John Kiboi Kapkitui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2017
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Application for Temporary Injunction
- Outcome
- temporary injunction granted
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Bona Fide Purchaser, Possession and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Juma Chebus
Plaintiff
Moses Kapkitui
Defendant
John Kiboi Kapkitui
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for the grant of a temporary injunction.
- 2 Whether the applicant would suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant of a temporary injunction.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success based on the exhibited sale agreement and evidence of possession and cultivation of the suit land. The court held that, at the interlocutory stage, it is not required to make final determinations on the merits but to consider whether the applicant meets the threshold for a temporary injunction. The court concluded that the applicant would likely suffer irreparable harm if the respondents continued to interfere with the land, and therefore granted a temporary injunction restraining the respondents and their agents from interfering with or dealing with the suit land until the hearing and...
Court Disposition
temporary injunction granted
Orders
- An order of temporary injunction is granted restraining the respondents and their agents from in any way interfering or dealing with the suitland until the hearing and determination of the main suit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 60 OF 2017
PAUL JUMA CHEBUS………………….…..…………PLAINTIFF
VERSUS
MOSES KAPKITUI…………………….……….1ST DEFENDANT
JOHN KIBOI KAPKITUI……………………….2ND DEFENDANT
R U L I N G
1. By an application dated 4/4/2017 the plaintiff sought an order that the defendants and their agents be restrained by way of a temporary injunction from claiming, ploughing, occupying, planting or using one acre out of Plot No. 45 Chepkuy Co-operative Society till the hearing and determination of this suit.
2. The grounds on which the application is made are that the applicant is the bonafide purchaser of one acre at Chepkuy Co-operative Society Plot No. 45, and that the applicant has been in use and occupation of the said plot since the year 2011; that however on 20/3/2017 the 2nd defendant stormed the suitland and claimed ownership rights; that the 2nd respondent has invaded the land and ploughed the one acre comprised therein; and that this action is uncalled for and unlawful. The second respondent is a son to the first respondent
3. The application is opposed. The replying affidavit of Moses Kiptumuno Kapketui has been filed. He has been given authority to swear the affidavit in opposition to the application by the 2nd respondent. He avers that the applicant is guilty of nondisclosure; that he did not sell any land to the applicant; that the sale agreement exhibited by the applicant is a forgery; that the land in issue is part of a school farm which he could not have sold in view of the fact that the school need more land for expansion; that the school of which he is a director has been utilizing the land all along; that the 2nd respondent did not storm the land as the same has been in the defendants’ occupation and use; that it is the applicant who attempted to invade the land in February, 2017; and that the orders sought are not merited.
4. The agreement exhibited by the applicant suggests there was a sale transaction between the applicant and the 1st respondent in the year 2011. There is also other evidence to suggest that the applicant has been in possession of the suitland and that he has been cultivating.
5. At this interlocutory stage the court is only required to satisfy itself that the applicant has a prima facie case with probability of success and that he would suffer irreparable damage if the orders sought are not granted
6. I find that the applicant has established a prima facie case with probability of success and I grant an order of temporary injunction restraining the respondents and their agents from in any way interfering or dealing with the suitland until the hearing and determination of the main suit herein.
Dated, signed and delivered at Kitale on this 9th day of October, 2017.
MWANGI NJOROGE
JUDGE
9/10/2017
Before – Mwangi Njoroge Judge
Court Assistant – Isabellah/Picoty
Mr.Wafula for Applicant
Mr. Ambutsi holding brief for Chebii for Respondent
COURT
Ruling read in open court in the presence of counsel for both parties.
MWANGI NJOROGE
JUDGE
9/10/2017