[2013] KEHC 805 (KLR)
The court found that the applicants had demonstrated a prima facie case with a probability of success in their claim for adverse possession, as they were in occupation of the suit land and had filed an Originating Summons which was still pending. The court further held that the applicants would suffer irreparable...
Source-derived case information.
- Citation
- [2013] KEHC 805 (KLR)
- Parties
- Applicant: Simon Mulongo Sikuku; Applicant: Donald Muse Sikuku; Respondent: Munyang’oli Mbuya Wewela
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 248 of 2013
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Application
- Outcome
- application partly allowed
- Legal Topics
- Adverse Possession, Interlocutory Injunctions, Irreparable Loss, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mulongo Sikuku
Applicant
Donald Muse Sikuku
Applicant
Munyang’oli Mbuya Wewela
Respondent
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicants have established a prima facie case with a probability of success for grant of interlocutory injunction.
- 2 Whether the applicants will suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favours the grant of injunctive orders.
Ratio Decidendi
The court found that the applicants had demonstrated a prima facie case with a probability of success in their claim for adverse possession, as they were in occupation of the suit land and had filed an Originating Summons which was still pending. The court further held that the applicants would suffer irreparable loss if the land was sold or disposed of before the determination of the main suit, as such loss could not be adequately compensated by damages. The balance of convenience was also found to favour the applicants, given their occupation of the land. However, the court limited the injunctive relief to restraining the sale or disposal of the land, declining to grant broader...
Court Disposition
application partly allowed
Orders
- Interlocutory injunctive orders granted restraining the respondent, his agents or servants from selling or disposing of land parcel No. NORTH KABRAS/ LUANDETI/1022 pending determination of the suit.
- Prohibitory orders sought are declined.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
ENVIRONMENT AND LAND CASE NO. 248 OF 2013 (O.S.)
SIMON MULONGO SIKUKU
DONALD MUSE SIKUKU ……. APPLICANTS/PLAINTIFFS
VERSUS
MUNYANG’OLI MBUYA WEWELA - RESPONDENT/DEFENDANT
RULING
Before me is a Notice of Motion dated 2nd September 2013 for interlocutory injunctive and prohibitory orders filed by two applicants. The application was filed under Order 40 Rule 1 of the Civil Procedure Rules and Section 63 (e) of the Civil Procedure Act (Cap.21).
The application has grounds on the face of the Notice of Motion. It was filed with an affidavit sworn by Simon Mulongo Sikuku, one of the applicants.
The application is opposed. A replying affidavit sworn by the respondent on 13th September 2013 was filed.
On the hearing date, the respondent did not appear in court. Mr. Athunga for the applicants acknowledged that the respondent had filed a replying affidavit in opposition to the application. Counsel asked for the grant of prayer 3 and 4 of the application.
This is, in the main, an application for interlocutory injunctive orders. The parameters to be taken into consideration by the court in such an application are well settled. The well known case of Giella –vs- Cassman Brown Ltd. [1973] EA 358 is clear on this. An applicant has to show a prima facie case with probability of success. Secondly, an injunction will not normally be granted unless the applicant will otherwise suffer irreparable loss which is not capable of compensation in the form of damages in case the injunction is not granted. Thirdly, if the court is in doubt, it will decide the application on the balance of convenience.
The genesis of this application is that the two applicants filed an Originating Summons herein for adverse possession. It is still pending. They then filed the present application.
A prima facie case is not one that must succeed, but one which may or may not succeed. The Originating Summons herein may or may not succeed. I find that the applicants have shown a prima facie case with probability of success.
Will they suffer irreparable loss if the injunction sought is not granted? In my view, they will only suffer irreparable loss if the land is sold or disposed of. Failure to grant other requests in prayer 3 cannot give rise to irreparable loss. The applicants have shown that they will suffer irreparable loss only with respect to sale or disposal of the land.
The balance of convenience is also in favour of the applicants as they appear to be in occupation.
I will grant interlocutory injunctive orders, but restricted to sale or disposal of the land.
The application has also asked for issuance of prohibitory orders. I do not see the need for the prohibitory orders sought, as the injunctive orders herein if issued, can be noted against the title.
Consequently, I allow the application and grant injunctive orders against selling or disposing land parcel No. NORTH KABRAS/ LUANDETI/1022. These injunctive orders are directed to the respondent, his agents or servants. I decline to grant prohibition orders.
Costs in the cause.
Dated, singed and delivered at Kakamega this 28th day of November, 2013
George Dulu
J U D G E