[2014] KEELC 587 (KLR)

[2014] KEELC 587 (KLR)

The court found that while the applicant demonstrated a prima facie case by virtue of holding a title deed, he failed to show he would suffer irreparable harm if the injunction was not granted, as he was not in occupation and could be compensated by damages. The respondent, on the other hand, had been in continuous occupation for several years. The court held that an injunction cannot restrain an act that has already occurred, and the balance of convenience favored the respondent, who would suffer greater harm if evicted. Consequently, the application for a temporary injunction was dismissed, with costs awarded to the respondent.

Citation
[2014] KEELC 587 (KLR)
Parties
Applicant: Samwel Njehia Gitau; Respondent: Joyce Wanjiku
Court
Environment and Land Court
Court Station
Environment and Land Court at Nairobi
Jurisdiction
Kenya
Judgment Date
23 May 2014
Case Number
Environment & Land Case 921 of 2012
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Outcome
application dismissed
Legal Topics
Temporary Injunctions, Ownership Disputes, Title Registration, Fraud in Land Transactions
Source Language
English
Land and Property Civil Procedure Temporary Injunctions Ownership Disputes Title Registration Fraud in Land Transactions

Case Brief

Summary, issues, holding and outcome

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Parties

Samwel Njehia Gitau

Applicant

Joyce Wanjiku

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Interlocutory Injunction

Legal Issues

  1. 1 Whether the applicant has established a prima facie case to warrant the grant of a temporary injunction restraining the respondent from entering or occupying the suit property.
  2. 2 Whether the applicant would suffer irreparable harm if the injunction is not granted.
  3. 3 Where the balance of convenience lies in the circumstances of the case.

Ratio Decidendi

The court found that while the applicant demonstrated a prima facie case by virtue of holding a title deed, he failed to show he would suffer irreparable harm if the injunction was not granted, as he was not in occupation and could be compensated by damages. The respondent, on the other hand, had been in continuous occupation for several years. The court held that an injunction cannot restrain an act that has already occurred, and the balance of convenience favored the respondent, who would suffer greater harm if evicted. Consequently, the application for a temporary injunction was dismissed, with costs awarded to the respondent.

Court Disposition

application dismissed

Orders

  • The Applicant’s Notice of Motion dated 27th November 2012 is dismissed with costs to the Defendant.
  • Parties to set down the main suit for hearing for resolution on merit.