[2018] KEELC 1956 (KLR)
The court found that the applicant failed to establish a prima facie case with a probability of success because they were not the registered owners of the suit land. The court relied on the certificates of official search, which showed the land was registered in the name of the plaintiff/respondent. Allegations of...
Source-derived case information.
- Citation
- [2018] KEELC 1956 (KLR)
- Parties
- Plaintiff: Paul Kimutai Rotich; Defendant: Robert Kipkemoi Korir; Defendant: Gilbert Kipkoech Korir
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 29 of 2018
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- DO Ogal
- Legal Topics
- Interlocutory Injunction, Ownership Disputes, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kimutai Rotich
Plaintiff
Robert Kipkemoi Korir
Defendant
Gilbert Kipkoech Korir
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an order of temporary injunction.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case with a probability of success because they were not the registered owners of the suit land. The court relied on the certificates of official search, which showed the land was registered in the name of the plaintiff/respondent. Allegations of fraud were raised but were not for determination at the interlocutory stage. Having failed the first test for the grant of an interlocutory injunction, the court found it unnecessary to consider the other tests and dismissed the application.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed.
- The costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
ENVIRONMENT AND LAND DIVISION
CIVIL SUIT NO.29 OF 2018
PAUL KIMUTAI ROTICH............................PLAINTIFF/ APPLICANT
VERSUS
ROBERT KIPKEMOI KORIR........1STDEFENDANT/RESPONDENT
GILBERT KIPKOECH KORIR....2ND DEFENDANT/RESPONDENT
RULING
Introduction
1. This Ruling is in respect of the Applicant's application dated 31st May 2018 seeking an order of injunction restraining the Plaintiff/Respondents by themselves, agents, servants, employees or otherwise from using, possession, selling or disposing, cultivating, entering upon, remaining, or in any way interfering with the Defendants’ use or interests in all land parcel registration number L.R NO. KERICHO/KIPTUGUMO/1121,and KERICHO/KIPTUGUMO/1175 or doing any other act which is prejudicial to the applicants.
2. The application is supported by the Applicant’s affidavit sworn on 31st May 2018.
3. The Respondent responded to the application by filing a replying affidavit dated 12th day of July 2018.
Issues for Determination
4. The only issue for determination is whether the Applicant is entitled to an order of temporary injunction.
Analysis and Determination
5. In order for the Court to exercise its discretion in granting injunctive relief the Applicant must meet the conditions set out in the case of Giella V Cassman Brown & Company Ltd 1973 EA 358.
6. I have carefully considered the submissions filed by both counsel. I agree with counsel for the Respondent that the Applicant has not established a prima facie case with a probability of success as they are not the registered owners of the suit land. It is clear from the certificates of official search that the suit land is registered in the name of the Plaintiff/Respondent. Even though allegations of fraud have been raised against the Plaintiff, the Court is not required to determine the same at this interlocutory stage.
7. Since the Applicant has failed the first test for the grant of interlocutory injunctions, I need not look at the other tests.
8. Accordingly, I find no merit in the Plaintiff’s application and the same is hereby dismissed. The costs of the Application shall be in the cause.
Dated, signed and delivered at Kericho this 30th day of August, 2018.
............................
J.M ONYANGO
JUDGE
In the presence of:
1. Mr. Mwita for Miss Koech for the Respondent
2. N/A for the Applicant
3. Court assistant - Rotich