[2010] KEHC 539 (KLR)
The court found that the applicant had established a prima facie case by providing documentary evidence of allotment and occupation of the suit plot since 1987. The respondent did not dispute the applicant's development and possession of the land, nor did it follow proper procedure or provide notice before...
Source-derived case information.
- Citation
- [2010] KEHC 539 (KLR)
- Parties
- Plaintiff: Salina Chemutai Keino; Defendant: The County Council of Marakwet & 3 Others
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 48 of 2002
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in favour of the applicant
- Judges
- PM Mwilu
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Allotment Letters, Possession and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salina Chemutai Keino
Plaintiff
The County Council of Marakwet & 3 Others
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for the grant of an interlocutory injunction.
- 2 Whether the applicant would suffer irreparable harm not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favours the applicant.
Ratio Decidendi
The court found that the applicant had established a prima facie case by providing documentary evidence of allotment and occupation of the suit plot since 1987. The respondent did not dispute the applicant's development and possession of the land, nor did it follow proper procedure or provide notice before attempting to interfere. The court held that damages would not be an adequate remedy given the applicant's continued possession and development of the property. The balance of convenience was found to favour the applicant, as she acted promptly after the events in question. Consequently, the court granted the interlocutory injunction restraining the respondent from interfering with the...
Court Disposition
interlocutory injunction granted in favour of the applicant
Orders
- An interlocutory injunction is issued restraining the County Council of Marakwet from any dealings with the applicant's plot pending determination of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL SUIT NO. 48 OF 2002
SALINACHEMUTAI KEINO …………………....................................................................……. PLAINTIFFF
VERSUS
THE COUNTY COUNCIL OF MARAKWET &
3 OTHERS ……......……………………………..........................................................………. DEFENDANTS
R U L I N G
The Plaintiff/Applicant’s application is for an interlocutory injunction to issue to restrain the County Council of Marakwet from any dealings with the applicant’s plot size 15 x 30 meters at Cheptongei Centre. The grounds in support of the application are that the applicant has a prima facie case with a probability of success as the applicant is the registered absolute owner of the plot. As per her supporting affidavit the defendant’s agents and servants went to the suit plot and took measurements of the same targetting it for demolition to create a road on baseless or illegal grounds and that such action was without notice and amounted to interference with the applicant’s possession of her plot and of the pending suit herein. That the applicant has a letter of allotment of the suit plot. She annexed to the said affidavits documents to prove allotment and payment of rent.
The defendant/respondent field grounds of opposition that the application is bad in law and without merit, made in bad faith and applicant is guilty of latches and that the applicant does not meet the minimum requirements for the grant of the orders sought.
Learned Counsel Mr. Cheptarus for the applicant submitted that the suit plot was allocated to the applicant in 1987 and applicant went into possession and developed the plot and she has a prima facie case. She has continued to pay rents and the defendant should be restrained from interfering with the applicant’s plot.
Learned counsel Mr. Kitur for the respondent submitted that the applicant had been indolent and equity frawns on such. He added that the applicant had not made out a prima facie case.
I have given the application due consideration. The applicant must satisfy the grounds set out in GIELLA –VS- CASSMAN BROWN & CO. LTD. (1973)EA 358 to succeed. Those grounds are that the applicant must show a prima facie case with a probability of success, that an injunction will not normally issue unless the applicant may suffer injury which cannot be adequately compensated by an award of damages and should the court be in doubt then it would decide the application on a balance of convenience.
In this case the applicant has shown by documentary proof that she was allotted the plot in question sometime during 1987. She deponed, and it was not disputed, that she developed the same and she is in occupation. The respondent has not denied that it did not proceed procedurally and neither gave notice nor reasons for its action. In these circumstances I find that the applicant has made out a prima facie case. She should not be made to consider damages in the instant circumstances. She is in possession and the balance of convenience tilts in her favour she was not indolent as the events complained of occurred on 22/9/2008 and she filed instant application on 3/10/2010. Consequently I grant the orders of injunction as sought.
Orders accordingly.
DATED SIGNED AND DELIVERED AT ELDORET THIS 15TH DAY OF DECEMBER 2010.
P.M. MWILU
JUDGE
In the presence of;
Advocate for Plaintiff/Applicant
Advocate for Defendant/Respondent
Court Clerk
P.M. MWILU
JUDGE