[2013] KEHC 3614 (KLR)
The court found that the applicant had demonstrated allocation of the disputed plot by the Lodwar Municipal Council and that its averments were uncontroverted. The applicant established a prima facie case with a probability of success, as it was entitled to exclusive possession and use of the land. The court held...
Source-derived case information.
- Citation
- [2013] KEHC 3614 (KLR)
- Parties
- Plaintiff: Seventh Day Adventist Church Lodwar; Defendant: Andrew Lokaala; Defendant: Jacob Lokwar; Defendant: Susan Naluk; Defendant: Jeremiah Apalia; Defendant: Michael Lowoton; Defendant: Oxfam GB-Lodwar Branch; Defendant: Councilor Kanamkemer Ward
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 14 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Temporary injunction granted in favour of the applicant; costs awarded to the applicant.
- Judges
- EO Obaga
- Legal Topics
- Injunctive Relief, Land Allocation, Exclusive Possession, Trespass, Municipal Land Grants
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seventh Day Adventist Church Lodwar
Plaintiff
Andrew Lokaala
Defendant
Jacob Lokwar
Defendant
Susan Naluk
Defendant
Jeremiah Apalia
Defendant
Michael Lowoton
Defendant
Oxfam GB-Lodwar Branch
Defendant
Councilor Kanamkemer Ward
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from interfering with Plot No. 619 at Kanamkemer, Lodwar pending determination of the main suit.
- 2 Whether the applicant has established a prima facie case with a probability of success.
Ratio Decidendi
The court found that the applicant had demonstrated allocation of the disputed plot by the Lodwar Municipal Council and that its averments were uncontroverted. The applicant established a prima facie case with a probability of success, as it was entitled to exclusive possession and use of the land. The court held that, in the absence of any contrary evidence or response from the respondents, the applicant was entitled to protection of its property rights. Consequently, the court granted a temporary injunction restraining the respondents from interfering with Plot No. 619 pending the hearing and determination of the main suit, and awarded costs of the application to the applicant.
Court Disposition
Temporary injunction granted in favour of the applicant; costs awarded to the applicant.
Orders
- A temporary injunction is granted restraining the respondents, their agents and/or servants from encroaching, developing, sub-dividing, demarcating, ploughing, selling or in any other way interfering with Plot No. 619 at Kanamkemer, Lodwar pending hearing and determination of the main suit.
- The applicant shall have costs of this application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Kitale
Environmental & Land Case 14 of 2013 [if gte mso 9]><xml>
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SEVENTH DAY ADVENTIST CHURCH LODWAR........…… PLAINTIFF
VERSUS
ANDREW LOKAALA ….......................................... 1ST DEFENDANT
JACOB LOKWAR ….............................................. 2ND DEFENDANT
SUSAN NALUK …................................................. 3RD DEFENDANT
JEREMIAH APALIA …........................................... 4TH DEFENDANT
MICHAEL LOWOTON …..................................... 5TH DEFENDANT
OXFAM GB-LODWAR BRANCH …..................... 6TH DEFENDANT
COUNCILOR KANAMKEMER WARD ….............. 7TH DEFENDANT
R U L I N G
The Applicant, Seventh Day Adventist Church Lodwar brought a Notice of Motion seeking orders of injunction restraining the Defendants/Respondents, their agents and/or servants from encroaching, developing, sub-dividing, demarcating, ploughing, selling or in any other way interfering with Plot No. 619 located at Kanamkemer in Lodwar pending hearing and determination of the main suit. All the Defendants/Respondents were duly served but none except the 6th Defendant/Respondent responded to the application. During the hearing, the suit against the 6th Defendant was withdrawn against the 6th Defendant. The application therefore proceeded ex-parte. The Applicant contends that it was allocated Plot No. 619 by Lodwar Municipal Council on 20/11/2010 as per the letter of allocation annexed to the Supporting Affidavit of the Notice of Motion. That in March 2012, the Applicant learnt that the area Councilor had permitted some Non Governmental body to put up stores for relief food without its consent. The Applicant further learnt that the 1st to 5th Respondents had encroached onto its land and started clearing the bush and destroying the fence round the plot. The Applicant tried to ask the Respondents to desist from their activities through the Area Chief in vain. This is why it has brought this application against the Defendants.
The averments in the Applicants Affidavit have not been controverted. The Applicant has shown that it was allocated the plot in issue by the Municipal Council of Lodwar. In the absence to the contrary, the Applicant is entitled to exclusive possession and use of the same to the exclusion of all others. The Applicant has annexed photographs to the Supporting Affidavit . Some structures have been erected on the said plot. The Applicant is entitled to protection of its land. I find that the Applicant has demonstrated that it has a prima facie case with a probability of success. I grant a temporary injunction against the Respondents in terms of prayer 4 of the Notice of Motion dated 7th February, 2013. The Applicant shall also have costs of this application.
It is so ordered.
Dated, signed and delivered in Open Court on this 6th day of May, 2013.
E. OBAGA
JUDGE
In the presence of Mr. Nyamu for Mr. Nyachiro for Applicant Court Clerk: Kassachoon.
E. OBAGA
JUDGE
06/05/2013
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