[2018] KEELC 1041 (KLR)
The court found that the plaintiffs had established a prima facie case by producing a title deed in their names and showing that the 1st to 3rd defendants had no material evidence to support their claim to the property. The 4th defendant failed to provide any explanation for demanding the surrender of the...
Source-derived case information.
- Citation
- [2018] KEELC 1041 (KLR)
- Parties
- Plaintiff: Simon Kipkemoi Seroney; Plaintiff: Paul Kugo Tesot; Defendant: Joseph Maritim; Defendant: Johana Maritim; Defendant: Samwel Maritim; Defendant: County Land Registrar Nakuru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 108 of 2018
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted
- Legal Topics
- Injunctive Relief, Title Ownership, Quiet Possession, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kipkemoi Seroney
Plaintiff
Paul Kugo Tesot
Plaintiff
Joseph Maritim
Defendant
Johana Maritim
Defendant
Samwel Maritim
Defendant
County Land Registrar Nakuru
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case with a probability of success for grant of an interlocutory injunction.
- 2 Whether the plaintiffs stand to suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case by producing a title deed in their names and showing that the 1st to 3rd defendants had no material evidence to support their claim to the property. The 4th defendant failed to provide any explanation for demanding the surrender of the plaintiffs' title for cancellation. In the absence of any opposition or justification from the defendants, the court was satisfied that the plaintiffs risked irreparable loss if the injunction was not granted. The court therefore allowed the application for an interlocutory injunction, restraining the defendants from interfering with the plaintiffs' possession and title to the suit...
Court Disposition
injunction granted
Orders
- Pending hearing and determination of the suit, the defendants are restrained from interfering in any way with the plaintiffs' possession of the suit property.
- Pending hearing and determination of the suit, the defendants are restrained from interfering in any way with the title held by the plaintiffs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIROMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 108 OF 2018
SIMON KIPKEMOI SERONEY..........................1ST PLAINTIFF
PAUL KUGO TESOT...........................................2ND PLAINTIFF
VERSUS
JOSEPH MARITIM..........................................1ST DEFENDANT
JOHANA MARITIM.......................................2ND DEFENDANT
SAMWEL MARITIM......................................3RD DEFENDANT
COUNTY LAND REGISTAR NAKURU.......4TH DEFENDANT
RULING
(Application for injunction; application not opposed, application allowed).
1. This suit was commenced through a plaint which was filed on 8 March 2018. In the suit, the plaintiffs have pleaded that they are the owners of the land parcel Shawa/Gicheha Block 2/74. It is averred that sometimes in the year 2016, the 1st, 2nd and 3rd defendants, who are the plaintiffs’ neighbours laid claim to the land. It is pleaded that in the year 2018, the plaintiffs received a letter from the 4th defendant, the Land Registrar, asking them to surrender their title for cancellation. In this suit, they wish to have orders permanently restraining the defendants from any interference with their quiet use and possession of the suit land.
2. Alongside the plaint, the plaintiff filed an application for injunction, seeking to restrain the defendants from the suit property, pending hearing and determination of the case. It is that application which is the subject of this ruling.
3. Despite being served, none of the defendants has filed any response to the application. Indeed, it is only the 4th defendant who has entered appearance in this matter.
4. The supporting affidavit is sworn by the 1st plaintiff. He has annexed a copy of the title deed to the suit land to prove ownership of it. He had deposed that they bought this property for value from the previous owner, one Kiprotich Keino. He has also annexed a copy of the letter dated 26 February 2018, from the Land Registrar, asking them to present their title for cancellation. It is his view that this action by the 4th defendant is illegal and contrary to the rules of natural justice and they have never been informed of any complaint presented to the 4th defendant.
5. I have considered the application. The principles upon which such an application is assessed were laid down in the case of Giella vs Cassman Brown (1974) EA 358. An applicant needs to demonstrate a prima facie case with a probability of success, and also show that he stands to suffer irreparable loss unless the injunction is granted. Where the court is in doubt, it will consider the balance of convenience.
6. The only material that I have in this case is that presented by the applicants. I have seen that they do have a title deed in their name. I have not been given any material from the defendants which entitles the 1st, 2nd and 3rd defendants to lay claim to the suit property. The 4th defendant has also not given any explanation as to why it would demand the plaintiffs to present their title for cancellation. I am therefore persuaded that the plaintiff has displayed a prima facie case with a probability of success. If I do not issue an injunction, there may be interference with the suit land which may occasion the plaintiffs irreparable loss.
7. I have every reason to allow this application for injunction and I allow it. I do order that pending the hearing and determination of this suit, the defendants not to interfere in any way with the possession by the plaintiffs of the suit property and also not to interfere in any way with the title held by the plaintiffs.
8. The plaintiffs will also have the costs of this application.
9. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 11th day of October 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mr. Kanyi Ngure holding brief for Mr. Ombati for the plaintiffs/applicants.
Mr. Weche for the 4th defendant/respondent.
No appearance on the part of the 1st - 3rd defendants/respondents.
Court Assistants: Nelima/Carlton.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU