[2009] KEHC 1900 (KLR)
The court found that the applicant had paid the full purchase price for the land, had been given vacant possession, and that the respondent had failed to obtain the necessary Land Control Board consent and transfer the land. The court was persuaded that the applicant had established a prima facie case and that it...
Source-derived case information.
- Citation
- [2009] KEHC 1900 (KLR)
- Parties
- Plaintiff: Samwel Kipkemboi Chebon; Defendant: Willy Yator Rotich Kamuren
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 117 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction granted.
- Judges
- JL Osiemo
- Legal Topics
- Injunctive Relief, Land Sale Disputes, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kipkemboi Chebon
Plaintiff
Willy Yator Rotich Kamuren
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from dealing with LR. No. 23100/2 pending determination of the suit.
- 2 Whether the applicant has established a prima facie case for the grant of an injunction.
Ratio Decidendi
The court found that the applicant had paid the full purchase price for the land, had been given vacant possession, and that the respondent had failed to obtain the necessary Land Control Board consent and transfer the land. The court was persuaded that the applicant had established a prima facie case and that it was just to preserve the status quo by granting a temporary injunction. The court exercised its discretion in favor of the applicant, granting the injunction to restrain the respondent from dealing with the suit property pending the hearing and determination of the main suit.
Court Disposition
Application for temporary injunction granted.
Orders
- A temporary injunction is issued restraining the defendant from encroaching, constructing, wasting, alienating, damaging, selling, charging, or in any other manner dealing with Parcel LR. No. 23100/2 pending the hearing and determination of the suit.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT ELDORET
Civil Suit 117 of 2009
SAMWEL KIPKEMBOI CHEBON .…..…………..….. PLAINTIFF
VERSUS
WILLY YATOR ROTICH KAMUREN …………….. DEFENDANT
R U L I N G
This is an application by way of Chamber Summons dated 24th June, 2009 in which the Plaintiff/Applicant seeks orders that a temporary injunction do issue against the Defendant/Respondent restraining him from encroaching, constructing, wasting, alienating, damaging, selling, charging, or in any other manner dealing with Parcel LR. No. 23100/2 pending the hearing and determination of this suit.
The application is premised on the grounds as stated on the body of the chamber Summons and supported by an affidavit sworn by the Applicant on the 24th June, 2009.
The facts which gave rise to this litigation as gathered from the pleadings and the affidavit evidence briefly may be stated. The Respondent is the registered proprietor of the suit land being LR. No. 23100/6. He offered to sell it to the Applicant and the Applicant agreed to purchase the same. They negotiated the purchase price which was agreed at Sh. 1,000,000/=. The Applicant paid the whole of the purchase price and was given vacant possession but the Respondent failed to apply to the Land Control Board for consent to the said transaction and has failed to transfer the land to the Applicant.
Mr. Birech learned Counsel appearing for the Applicant submitted that despite the fact that the Respondent had received the whole of the purchase price and gave the Applicant vacant possession, he has failed to transfer the suit land to the Applicant. He further submitted that the Applicant has filed a suit claiming the suit land by adverse possession which is yet to be heard and in the mean time he prays for an order of injunction.
The principles underlying the granting or refusal of injunction are well settled in various decisions of the Court of Appeal. Where an injunction is granted it will preserve or maintain the status quo of the subject matter pending the determination of the main suit before the Court.
On an application for an injunction in aid of a Plaintiff’s alleged right, the Court will usually wish to consider whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve the property without waiting for the right to be finally established. See Halsbury’s Laws of England 4th Edition Volume 24 Paragraph 953.
From the materials placed before me I am persuaded that I should exercise my discretion in favour of the Applicant.
Accordingly I grant the application in terms of prayer (b) of the Chamber Summons dated 24th June, 2009. Costs will be in the cause.
DELIVERED AND DATED AT ELDORET THIS 22ND DAY OF SEPTEMBER, 2009.
J. L. A. OSIEMO
JUDGE
In the presence of: