[2019] KEELC 4856 (KLR)
The court found that the applicant failed to present sufficient evidence to establish a prima facie case against the respondent. The photographs provided by both parties depicted different structures, and there was no credible evidence linking the respondent to the alleged developments on Plot No. 279. The applicant...
Source-derived case information.
- Citation
- [2019] KEELC 4856 (KLR)
- Parties
- Plaintiff: Solomon Peitum Rioreta; Defendant: Rengono Todumuk Julius
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 70 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Group Ranch Membership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Peitum Rioreta
Plaintiff
Rengono Todumuk Julius
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of a temporary injunction against the defendant.
- 2 Whether the applicant will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favours granting the injunction.
Ratio Decidendi
The court found that the applicant failed to present sufficient evidence to establish a prima facie case against the respondent. The photographs provided by both parties depicted different structures, and there was no credible evidence linking the respondent to the alleged developments on Plot No. 279. The applicant did not rebut the respondent's claim that he resided on a different plot (Plot No. 216) and had no connection to the disputed land. Consequently, the court held that the threshold for granting a temporary injunction was not met, as the applicant did not demonstrate a clear right or imminent harm. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 25/7/2018 is dismissed with costs to the respondent.
- The name of the defendant in the suit is amended to read 'Rengono Todumuk Julius.'
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 70 OF 2018
SOLOMON PEITUM RIORETA................................PLAINTIFF
VERSUS
TOPEMUK RENGONO............................................DEFENDANT
RULING
1. The Notice of Motion dated 25th July, 2018 seeks the following orders:
(a) That pending the hearing and determination of this application inter partes, the defendant himself, his agents or anybody claiming through him be restrained by a temporary injunction from constructing a house, using, occupying and/or any other way dealing with land known as Plot No. 279 Kanyarkwat Group Ranch.
(b) That at inter partes hearing prayer (2) above be confirmed until determination of this suit
(c) Costs of this application be provided for.
2. The Notice of Motion is founded on the grounds set out at the foot of the application and in the supporting affidavit of the applicant. These are that the applicant is a member of the Kanyarkwat Group Ranch; that originally Plot Number 188 (hereinafter the suit land) was given to the applicant and one Simon A. Peitum; that after adjudication the same was divided into two portions, named as Number 278 and 279respectively; that the issue of ownership has been determined by the Assistant County Commissioner; that the respondent was at his request and owing to the applicant’s goodwill was granted use of the suit land by the applicant but he is now constructing a house thereon which development is not authorised by the applicant.
3. The replying affidavit to the application was filed on 17/9/2018 by one Rengono Todumuk Juliuswho avers that both the applicant and the named defendant are unknown to him. However when the matter was adjourned to enable both parties be present in court so that the applicant may confirm whether the defendant is the person he intended to sue the applicant appeared in person on 15/10/2018 and identified the deponent who has not filed a response as the proper defendant. I hereby make a preliminary order at this stage that the name of the defendant in this suit shall be amended to read “Rengono Todumuk Julius.”
4. Away from the identity issues, the respondent avers that his father a member of the ranch owned plot 216on which the defendant lives; that he is not a relative of the applicant; that he never sought the applicant’s permission to occupy his Plot No. 279; that he has never been on Plot No. 279; that he has not erected any developments on that plot and that he does not recognise the developments on that plot as depicted in the photographs annexed to the application to be his.
5. In a further affidavit dated 18th October 2018 the applicant responds to the respondent’s replying affidavit and confirms that the plots mentioned are separate and distinct from each other; however he avers that he can identify one building with a blue roof in the photographs exhibited in the replying affidavit as the one constructed on his land and that his claims are properly directed to the defendant.
6. In my view the structures in the photographs exhibited by the applicant as Exh. SPR5are not similar to the ones exhibited by the respondent in Exh. RTJ3 (a), (b), (c)and(d).No evidence to rebut the respondent’s claims has been presented to court.
7. In my view there is really not sufficient evidence upon which this court can find that the applicant has established a prima facie case against the respondent to warrant the grant of an injunction.
8. As to damage, I find that if it were assumed to be the case that the house in the photographs exhibited by the respondent is the one that the applicant objects to in his application, the photographs themselves are evidence that the house is complete and there is nothing before this court to convince me that the house is unoccupied as yet.
9. I am not in any doubt in respect of the instant application to warrant the invocation of the rule as to balance of convenience.
10. Consequently I find that the application dated 25/7/2018 has no merit and the same is dismissed with costs to the respondent.
Dated, signed and delivered at Kitale on this 29th day of January, 2019.
MWANGI NJOROGE
JUDGE
29/01/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
N/A for the applicant
Mr. Kiarie for the respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
29/01/2019