[2013] KEHC 2432 (KLR)
The court found that the applicant failed to demonstrate a prima facie case with a probability of success because she did not establish that the seller of the plot was the lawful owner of Plot No. 46. The sale agreement alone was insufficient without proof of the seller's ownership. Furthermore, the applicant was...
Source-derived case information.
- Citation
- [2013] KEHC 2432 (KLR)
- Parties
- Plaintiff: Ruth Wanjiku Kimani; Defendant: Samuel Amendi
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 58 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- EO Obaga
- Legal Topics
- Injunctive Relief, Sale of Land, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Wanjiku Kimani
Plaintiff
Samuel Amendi
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether the applicant will suffer irreparable loss not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant of an injunction.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case with a probability of success because she did not establish that the seller of the plot was the lawful owner of Plot No. 46. The sale agreement alone was insufficient without proof of the seller's ownership. Furthermore, the applicant was not in possession of the land, had not made any developments, and did not show that any loss suffered would be irreparable or not compensable by damages. The application was essentially seeking a mandatory injunction, which is not granted at the interlocutory stage without a clear case. Consequently, the application for an injunction was dismissed.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
ENVIRONMENT & LAND CASE NO. 58 OF 2013
RUTH WANJIKU KIMANI.............................................................…...PLAINTIFF
VERSUS
SAMUEL AMENDI.......................................................................... DEFENDANT
R U L I N G
The Applicant Ruth Wanjiku Kimani brought a Notice of Motion seeking injunctive orders against the Respondent, his servants and or agents from trespassing upon, construction on or in any way interfering with a plot measuring 50 X 100 out of Plot No. 46 Matunda Market Uasin Gishu County. The Applicant contends she bought the plot in issue from one Majitu Webbo Wepukhulu on 17/08/2012. The Applicant contends that the Respondent has without justifiable cause trespassed onto the plot and has refused to move out despite efforts to have him move out.
The application was served upon the Respondent who appeared in Court and orally informed the Court that he was not the owner of the land in issue but he was only a caretaker. He said that the proprietor had died and that her sister who was in possession of the documents to the land was in Denmark. The application was adjourned to enable him obtain the necessary documents but during the hearing, he did not turn up. The application proceeded in his absence. M/S Arunga for the Applicant argued that the Applicant who wanted to take possession of her plot had been prevented from doing so by the Respondent.
I have looked at the Sale Agreement which is annexed to the Applicant's application. The agreement refers to sale of Plot No. 46 which is 50 X 100. The Applicant in her affidavit states that she bought a plot measuring 50 X 100 out of Plot No. 46. The Sale Agreement does not state whether the said Majitu Webbo Wepukhulu is owner of the said plot. He only states that him and his family have agreed to sell Plot 46 (50 X 100) to the buyer. The agreement further states that the buyer is at liberty to deal with the plot as she wishes.
The principles for grant of a temporary injunction were well set out in the case of Giella Vs Cassman Brown & Co Ltd. One of the Principles is that an Applicant must demonstrate that he has a prima facie case with a probability of success. The Applicant is secondly to show that if the injunction is not granted, he will suffer loss which will not be compensable. Thirdly, if the Court is in doubt, it will decide the application on a balance of convenience.
In the present case, the Applicant is seeking an injunction on the basis of a Sale Agreement. It is not demonstrated whether the plot she bought belongs to the seller Majitu Webbo Wepukhulu. In the agreement, the plot being sold is Plot 46 (50 X 100). The Applicant contends that she bought a plot measuring 50 X 100 out of Plot 46. There is no indication as to how big Plot 46 is. The Respondent is already in possession of the suit land. It is not indicated when he came onto the plot. The Applicant merely says that the Respondent trespassed onto the plot and has refused to move out. It cannot be said that the Applicant has demonstrated that she has a prima facie case with a probability of success. It may well be possible that the seller took advantage of the death of the owner to try to defraud her of his land. The Applicant should have at least tried to demonstrate that Plot No. 46 belonged to the alleged seller. A Sale Agreement without more is not enough. If the Applicant finally proves a case, she has not demonstrated that the loss she will suffer cannot be compensable in monetary terms. She is not in possession of the land. She has not made any developments on it. What she is trying to ask for amounts to granting a mandatory injunction. This cannot be possible. I find that she has not made out a case for grant of an injunction. I dismiss her application with no order as to costs.
It is so ordered.
Dated, signed and delivered in Open Court on this 19th day of August, 2013.
E. OBAGA
JUDGE
In the presence of Mr. Ndarwa for M/S Arunga for Applicant.
Court Clerk: Lobolia.
E. OBAGA
JUDGE
19/08/2013A