[2018] KEELC 4089 (KLR)
The court found that the Plaintiff is the registered proprietor of the suit land, Kisumu/Kanyakwar ‘A’/80, as evidenced by the title deed and official search. The Plaintiff’s title is protected under the Land Registration Act, and the Land Surveyor’s report confirmed that the Plaintiff’s land had not encroached onto...
Source-derived case information.
- Citation
- [2018] KEELC 4089 (KLR)
- Parties
- Plaintiff: Simonash Investment Limited; Defendant: Kenya National Highways Authority; Defendant: Solel Boneh International Holdings AG (Kenya); Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 109 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Plaintiff's application for temporary injunction allowed with costs.
- Legal Topics
- Temporary Injunctions, Registered Land Title, Proprietary Rights, Road Reserve Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simonash Investment Limited
Plaintiff
Kenya National Highways Authority
Defendant
Solel Boneh International Holdings AG (Kenya)
Defendant
Attorney General
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case with a probability of success for a temporary injunction order to issue at this stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the Plaintiff is the registered proprietor of the suit land, Kisumu/Kanyakwar ‘A’/80, as evidenced by the title deed and official search. The Plaintiff’s title is protected under the Land Registration Act, and the Land Surveyor’s report confirmed that the Plaintiff’s land had not encroached onto the highway road or road reserve. The Defendants did not provide sufficient evidence to rebut the Plaintiff’s case or justify their intended actions. Consequently, the Plaintiff established a prima facie case warranting the grant of a temporary injunction to restrain the Defendants from interfering with the Plaintiff’s property pending the determination of the suit.
Court Disposition
Plaintiff's application for temporary injunction allowed with costs.
Orders
- The Defendants, their servants, agents or otherwise, are restrained from demolishing, trespassing onto, entering, remaining on, taking possession, developing or in any other way interfering with the Plaintiff’s title to, occupation and user of the property L.R. Kisumu/Kanyakwar ‘A’/80 pending the hearing and...
- The Plaintiff is awarded costs of the application.
Full Case Text
Judgment text and source record
42 paragraphs
REPLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.109 OF 2017
SIMONASH INVESTMENT LIMITED..........................................................PLAINTIFF
VERSUS
KENYA NATIONAL HIGHWAY AUTHORITY.................................1ST DEFENDANT
SOLEL BONEH INTERNATIONAL HOLDINGS AG (KENYA)....2ND DEFENDANT
ATTORNEY GENERAL........................................................................3RD DEFENDANT
RULING
1. Simonash Investment Limited, the Plaintiff, filed the notice of motion dated 21st March 2017 seeking to have Kenya National Highways Authority, Solel Boneh International Holdings AG (K) Ltd and the Honourable Attorney General,hereinafter refered to as the 1st to 3rd Defendants respectively, restrained by themselves, their servants, agents or otherwise howsoever from demolishing, trespassing onto, entering, remaining on, taking possession, developing or in any other way interfering with the Plaintiff’s title to, occupation and user of the property L.R. Kisumu/Kanyakwar ‘A” /80 situated at Kisumu County, pending the hearing and determination of this suit.
2. The application is based on the nine (9) grounds on its face marked (a) to (i) and is supported by the affidavit sworn by Richard Otieno Sikuku, a director, on the 21st March 2017.
3. That though the three Defendants entered appearance and appointed counsel, only the 2nd Defendant filed replying papers, to wit the replying affidavit sworn by Eugeney Strelniker, the project manager on the 5th April 2017.
4. That the application came up for hearing on the 20th June 2017 when among others, directions on filing and exchanging written submissions were given. The counsel for the Plaintiff filed their submissions dated 21st September 2017. That when the matter came up for mention on the 5th December 2017, today’s ruling date was fixed after the court declined to extend the time for the Defendants to file replying papers and or submissions.
5. The following are the issues for the court’s determinations;
a. Whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction order to issue at this stage.
b. Who pays the costs.
6. The court has carefully considered the grounds on the notice of motion, affidavit evidence by the Plaintiff and 2nd Defendant, submissions by counsel for the Plaintiff, the report from the Land Surveyor dated 16th June 2017 and come to the following findings;
a. That the Plaintiff is the registered proprietor of land parcel Kisumu/Kanyakwar ‘A’/80 as confirmed by the copy of the title deed and certificate of official search that confirms that they became the registered proprietor on the 6th December 2010.
b. That the Plaintiff as the indefeasible and absolute owner of the said land in terms of Section 26 of Land Registration Act No.3 of 2012 is entitled to rights and privileges of a registered proprietor as set out under Sections 24 and 25 of the said Act.
c. That the Plaintiff’s position that the markings made by the Defendants are on its land, and that the land has not encroached onto the road reserve, appears to be supported by the Land Surveyor’s report dated 16th June 2017 that found that “the parcel number Kisumu/Kanyakwar ‘A’/80 has not encroached into the highway road.”
d. That in view of the finding in (c) above, the court finds that the Plaintiff has established a prima facie case upon which an order of temporary injunction may be issued pending the hearing and determination of this suit.
7. That flowing from the foregoing, the court finds merit in the Plaintiff’s notice of motion dated 21st March 2017 and is allowed in terms of prayer 3 with costs.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 14TH DAY OF MARCH 2018
In presence of;
Plaintiff Absent
Defendants Absent
Counsel Mr. Odunga for the Plaintiff
Mr. Anule for Kamanda for 2nd Defendant
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
14/3/2018
14/3/2018
S.M. Kibunja Judge
Joan Court Assistant
Parties Absent
Mr. Oduga for the Plaintiff
Mr. Anule for Kamanda for 2nd Defendant
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
14/3/2018