[2019] KEELC 546 (KLR)
The court found that the interested party, Chelu Investments Limited, had provided sufficient evidence of its purchase and occupation of 96 acres forming part of LR. No. 6125/12, and that this portion does not interfere with the land claimed by the plaintiff. The application to lift the injunction as regards this...
Source-derived case information.
- Citation
- [2019] KEELC 546 (KLR)
- Parties
- Plaintiff: Paul Pkemoi Kide; Defendant: Philip Kimutai Kibor; Defendant: Agricultural Finance Corporation; Defendant: Rodstar Construction Co. Ltd; Interested Party: Chelu Investments Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 15 of 2018
- Procedural Posture
- Land Case / Ruling on Interlocutory Application to Lift Injunction
- Outcome
- Application granted. Injunction lifted as regards LR. No. 6125/12. Each party at liberty to apply for leave to amend pleadings. Costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Injunctions, Land Injunctions, Subdivision of Land, Possession and Control, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Pkemoi Kide
Plaintiff
Philip Kimutai Kibor
Defendant
Agricultural Finance Corporation
Defendant
Rodstar Construction Co. Ltd
Defendant
Chelu Investments Limited
Interested Party
Procedural Posture
Land Case / Ruling on Interlocutory Application to Lift Injunction
Legal Issues
- 1 Whether the injunction previously imposed should be lifted as regards LR. No. 6125/12 measuring 96 acres now in possession of the interested party.
- 2 Whether the interested party has demonstrated sufficient evidence of its interest and occupation to warrant lifting the injunction.
- 3 Whether lifting the injunction would prejudice the plaintiff or any other party.
Ratio Decidendi
The court found that the interested party, Chelu Investments Limited, had provided sufficient evidence of its purchase and occupation of 96 acres forming part of LR. No. 6125/12, and that this portion does not interfere with the land claimed by the plaintiff. The application to lift the injunction as regards this portion was unopposed by any party. The court held that there was no basis to continue the injunction over land in the possession of the interested party, as doing so would unjustly prejudice its interests. Accordingly, the court granted the application and ordered that the interim injunction issued on 15/11/2018 would no longer apply to LR. No. 6125/12 from the date of the ruling.
Court Disposition
Application granted. Injunction lifted as regards LR. No. 6125/12. Each party at liberty to apply for leave to amend pleadings. Costs in the cause.
Orders
- The injunction imposed upon parcel of land described as No. 6125/12 measuring 96 acres is lifted.
- Each party is at liberty to apply and/or move the court for leave to amend their pleadings.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 15 OF 2018
PAUL PKEMOI KIDE.........................................................................PLAINTIFF
VERSUS
PHILIP KIMUTAI KIBOR......................................................1ST DEFENDANT
AGRICULTURAL FINANCE CORPORATION..................2ND DEFENDANT
RODSTAR CONSTRUCTION CO. LTD...............................3RD DEFENDANT
CHELU INVESTMENTS LIMITED...............................INTERESTED PARTY
RULING
1. The application dated 25/10/2019 and filed in court on the same date has been brought by the Interested Party seeking the following orders:
(1) That this court be pleased to lift the injunction imposed upon parcel of land described as No. 6125/12 measuring 96 acres as mutated from the original title No. 6125/10.
(2) That each party be at liberty to apply and/or move the court for leave to amend their pleadings.
(3) That the costs of this application be in the cause.
2. The application is premised on the grounds set out in the notice of motion and is supported by a sworn affidavit, also dated 25/10/2019. It is brought under Section 1A, 3and3A and 63 (e)of theCivil Procedure Actand Order 1of theCivil Procedure Rules.
3. The grounds on the face of the application upon which the application is made are that the original title on the land which forms the subject matter of this suit comprised in LR. No. 6125/10 measuring 200 acres in total; that upon survey the interested party is in possession and actual control of 96 acres forming part of the parcel known as No. 6125/12 measuring 100 acres which land the interested party purchased from Rodstar Construction Co. Ltd, the 3rd defendant herein; that any injunction of court should not affect the portion actually occupied by the interested party; that the injunction granted to the plaintiff also affects the portion occupied by the interested party and thus prejudices it and should be lifted with regard to that portion; it is averred that the respondent will not suffer any prejudice if the orders prayed for are granted.
4. The application is not opposed by any of the parties.
5. I have examined the court record and found that when the interested party first approached this court vide an application dated 6/2/2019 seeking the same orders this court declined those orders on the basis that the interested party did not disclose which of the subdivisions cover the acreage the interested party purports to have bought from the 3rd defendant. Now that the interested party has availed sufficient evidence of the portion purchased and has shown that it does not interfere with the land claimed by the plaintiff, and the application is not opposed, this court finds no ground on which to deny the application dated 25/10/2019.
6. The upshot is that the application dated 25/10/2019 is granted in terms of prayer No. (1) (2)and(3) thereof. For clarity, the orders of interim injunction pending the hearing and determination of this suit issued on 15/11/2018 will from the date of this order cease to cover or apply in respect of LR. No. 6125/12.
Dated, signed and delivered at Kitale on this 28th day of November, 2019.
MWANGI NJOROGE
JUDGE
28/11/2019
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
N/A for Interested Party
Mr. Ngeywa for the 1st and 2nd Defendants
N/A for the plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
28/11/2019