[2018] KEELC 1273 (KLR)
The court found that the applicants had established a prima facie case with a probability of success, as it was not disputed that they were registered proprietors or lessees of the suit land and that the respondents were carrying out activities such as demarcation, creation of access roads, and easements. The court...
Source-derived case information.
- Citation
- [2018] KEELC 1273 (KLR)
- Parties
- Plaintiff: Saipei Nareiyo Lemayian; Plaintiff: Nengoe Ene Maingusi; Plaintiff: Andrew Aho; Defendant: Land Registrar (Kilgoris); Defendant: Oloirien Group Ranch
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 500 of 2017
- Procedural Posture
- Miscellaneous Application / Interlocutory Application for Injunction
- Outcome
- interlocutory injunction granted
- Judges
- MN Kullow
- Legal Topics
- Injunctions, Land Title Disputes, Demarcation of Boundaries, Access Roads, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saipei Nareiyo Lemayian
Plaintiff
Nengoe Ene Maingusi
Plaintiff
Andrew Aho
Plaintiff
Land Registrar (Kilgoris)
Defendant
Oloirien Group Ranch
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case for the grant of an injunction restraining the respondents from interfering with land parcel TRANS MARA/OLOIRIEN/24.
- 2 Whether the applicants will suffer irreparable harm if the injunction is not granted.
- 3 Whether damages would be an adequate remedy for the applicants.
Ratio Decidendi
The court found that the applicants had established a prima facie case with a probability of success, as it was not disputed that they were registered proprietors or lessees of the suit land and that the respondents were carrying out activities such as demarcation, creation of access roads, and easements. The court further held that the damages likely to be suffered by the applicants would not be easily quantifiable, thus making damages an inadequate remedy. Consequently, the court was satisfied that the conditions for the grant of an interlocutory injunction had been met and granted the orders sought in prayers 4 and 5 of the Notice of Motion dated 13th July, 2017.
Court Disposition
interlocutory injunction granted
Orders
- An injunction is issued restraining the respondents from creating access roads, alienating, demarcating, leasing, or in any manner interfering with land parcel No. TRANS MARA/OLOIRIEN/24 pending hearing and determination of the suit.
- The 2nd respondent is ordered to provide to the applicant the green card of land title No. TRANS MARA/OLOIRIEN/24.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 500 OF 2017
SAIPEI NAREIYO LEMAYIAN..........................1ST PLAINTIFF
NENGOE ENE MAINGUSI.................................2ND PLAINTIFF
ANDREW AHO.....................................................3RD PLAINTIFF
-VERSUS-
LAND REGISTRAR (KILGORIS)...................1ST DEFENDANT
OLOIRIEN GROUP RANCH...........................2ND DEFENDANT
RULING
The Application before me is the Notice of Motion dated 13th July, 2017 where the Applicant seeks for orders that the 2nd Respondent be ordered to provide to the Applicant the green card of land title No. TRANS MARA/ OLOIRIEN/24 and an order restraining the 1st and 2nd Respondents from creating access roads, alienating, demarcating and leasing or in any manner interfering with the land parcel No. TRANS MARA /OLOIRIEN/24.
The Application was based on the grounds that the 1st and 2nd Applicants are the registered proprietors of the suit land and the 1st and 2nd Respondents have been creating access road, easements, demarcation and the Applicants are apprehensive that the Respondents actions will result in demolition of houses and they will suffer irreparable loss and damages.
The Application was supported by the Affidavit of Andrew Aho who deponed that he has the authority to swear the Affidavit and that he together with his co-applicants are apprehensive that since the Respondents are creating access roads, demarcation and other easements on the Applicants land Parcel No. TRANS MARA/ OLOIRIEN/24.
The Applicant avers that he has a lease of about 25 years on the land.
The Application was opposed by the 2nd Respondent by way of a Replying Affidavit sworn by Julius Ole Mokita who is the secretary to the 2nd Respondent. The 2nd Respondent avers that at all material times they have remained within the confines of the parcel of land and the boundaries separating the two parcels of land TRANS MARA/OLOIRIEN/24 and 1 is separated by a road and that the 2nd Defendant has no interest whatsoever on encroaching on the Plaintiff’s land.
I have read the Application before me and the submissions by counsel for the parties and the issue for determination at this interlocutory stage is whether the Applicants have satisfied their conditions for grant of an injunction.
From the pleadings it is not in dispute that the registration was done on the parcel of land known as TRANS MARA/OLOIRIEN/24 and it is also not in dispute that the Respondents are currently carrying out various activities such as demarcation of boundaries, easements and creating access roads which by their nature are intensive and I find that the Applicant is apprehensive and in the circumstance I am satisfied that the Applicants have established a prima facie case with a probability of success.
Secondly, if the Respondents continue carrying on the aforesaid exercise it is my finding that the damages will not be easily quantifiable as to access the damages that the Applicant will suffer.
In view of the above, it is my finding that the Applicant has established a prima facie case for the grant of the orders sought and I therefore grant order in terms of prayer 4 and 5 of the Notice of Motion dated 13th July, 2017.
Costs in the cause.
DATED, SIGNED and DELIVERED in open court at NAROK on this 17th day of October, 2018.
Mohamed N. Kullow
Judge
17/10/18
In the presence of:
Mr Yenko holding brief for Mr O.M. Otieno for 2nd Respondent
N/A for the Applicant
CA:Chuma