[2011] KEHC 1179 (KLR)
The court found that the Defendant/Applicant failed to establish a prima facie case with a probability of success, as the Elders Award and Iten court proceedings had been declared a nullity and stayed by a previous court order. Both parties claimed ownership of the suit property, and neither had a better title. The...
Source-derived case information.
- Citation
- [2011] KEHC 1179 (KLR)
- Parties
- Plaintiff: Paul Rop Komen; Plaintiff: Christopher Kanda; Plaintiff: Karel Clan; Defendant: Kamoi Clan
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 52 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Injunction
- Outcome
- application dismissed with costs to the defendant/applicant
- Judges
- A Mshila
- Legal Topics
- Interlocutory Injunctions, Proprietary Rights Disputes, Prima Facie Case, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Rop Komen
Plaintiff
Christopher Kanda
Plaintiff
Karel Clan
Plaintiff
Kamoi Clan
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the Defendant/Applicant has established a prima facie case with a probability of success to warrant a temporary injunction.
- 2 Whether damages would be an adequate remedy for the alleged acts of trespass or interference.
- 3 Whether the balance of convenience favors granting the injunction to the Defendant/Applicant.
Ratio Decidendi
The court found that the Defendant/Applicant failed to establish a prima facie case with a probability of success, as the Elders Award and Iten court proceedings had been declared a nullity and stayed by a previous court order. Both parties claimed ownership of the suit property, and neither had a better title. The Applicant did not provide specific or sufficient evidence of acts of interference, such as dates, acts, or identification of persons, nor did they submit photographic evidence or a valuation report. The court held that the requirements for the grant of a temporary injunction were not met, and the application lacked merit. The discretionary remedy of injunction was not warranted...
Court Disposition
application dismissed with costs to the defendant/applicant
Orders
- The application for a temporary injunction is dismissed.
- Costs of the application are awarded to the Defendant/Applicant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
HCC NO. 52 OF 2004
PAUL ROP KOMEN)
CHRISTOPHER KANDA)
On behalf of KAREL CLAN )........................................................................PLAINTIFFS /RESPONDENTS
VERSUS
KAMOI CLAN.........................................................................................................DEFENDANT/APPLICANT
RULING
The application before this court is dated the 3/03/2011 and is filed by the Defendant/Applicants. The main body of the application is under order 40 Rules (1) & (4) of the Civil Procedure Rules and the prayers sought are 2, 3 & 4 of the said application:-
(a)A temporary injunction pending inter parties hearing and determination of the Application against the Plaintiffs restraining trespassing and obstructing the Defendants from occupying the suit land.
(b)A temporary injunction pending hearing and final determination of this suit against the plaintiffs their servants/agents from trespassing, interfering and obstructing the defendant from occupying the suit land.
(c)Costs
The application is supported by the Affidavit & Supplementary Affidavit made by Peter Chepkiyeng. Both counsel for the Defendant/Applicant and Plaintiff/Respondent were present on the 12th Oct, 2011 and they proceeded to argue the application substantively and at length.
I have considered the arguments of both counsel and have read the respective affidavits, submissions and authorities in support and shall only address prayers 3 and 4 of the application. With regard to prayer 2 the same was spent on the 8th March, 2011 when the same was denied and disposed of by the Honourable Azangalala J. I therefore see no reason to revisit the same.
Prayers 3 relates to a temporary injunction restraining the Plaintiff, its servant and agents pending the determination of the suit.
The Defendant/Applicants counsel Mr. Kiboi submitted that:
(a)A prima facie case with probability of success had been made out against the Respondents.
(b)That damages would not be an adequate remedy.
(c)That the balance of convenience was tilted in favour of the applicants.
Indeed for such an application to succeed the applicant must satisfy the court on the above ingredients submitted by counsel for the Defendant/Applicant. The authorities submitted by counsel are supportive of these three key ingredients. Nevertheless, I find that on the basis of the Elders Award made herein the Defendant/Applicant has not made out a prima facie case with a probability of success as the purported acts of the Elders and the Iten court were declared a nullity and the same was stayed by this Honourable court on the 16th July, 2008 by the Honourable Mwilu J. The main suit relates to proprietary rights and both parties are claiming ownership. This would therefore mean that neither party has a better title than the other.
Secondly, this application is brought under Rule 40 (1) & (4) of the Civil Procedure Rules. I concur with the Respondent counsels argument that it is upon the Applicants to substantiate the acts of interference by giving specific dates, specific acts of interference and which specific persons committed the above acts and to also support the same with photographic evidence and or a Valuation Report (emphasis mine). The Defendant/Applicant has deponed to scanty, vague and sparse averments of the acts of trespass. The issues of how the suit property is in danger of being wasted and or damaged was not clearly canvassed or brought out leaving room for doubt as to whether the preservatory orders sought are indeed necessary.
At this juncture I would also like to point out that the remedy sought is also discretionary.
The Applicant has not convinced me on the need to exercise this discretion. I am satisfied that this application has no merit and hereby dismiss the same. As regards prayer (4) on the issue of costs. I am inclined to award the costs of this application to the Defendant/Applicants reasons being that had the Respondents counsel extracted and served the order of 16th July, 2008 the courts time would not have been spent on this application.
Order: Application dismissed with costs to the Defendant/Applicant.
DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF OCTOBER 2011.
A.MSHILA
JUDGE