[2019] KEELC 44 (KLR)
The court found that the applicant had demonstrated long-standing occupation of the suit land, and that the respondent's recent attempt to evict him threatened to defeat the substratum of the suit. Applying the established principles for granting interlocutory injunctions, the court held that the applicant had...
Source-derived case information.
- Citation
- [2019] KEELC 44 (KLR)
- Parties
- Applicant: Sumbi Malmale; Respondent: Moses Ole Kipeno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 50 of 2018
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted
- Judges
- MN Kullow
- Legal Topics
- Adverse Possession, Injunctive Relief, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sumbi Malmale
Applicant
Moses Ole Kipeno
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of an interlocutory injunction restraining the respondent from interfering with the suit land.
- 2 Whether damages would be an adequate remedy for the applicant if the injunction is not granted.
- 3 Where the balance of convenience lies between the parties.
Ratio Decidendi
The court found that the applicant had demonstrated long-standing occupation of the suit land, and that the respondent's recent attempt to evict him threatened to defeat the substratum of the suit. Applying the established principles for granting interlocutory injunctions, the court held that the applicant had established a prima facie case with a probability of success, that damages would not be an adequate remedy given the nature of the dispute, and that the balance of convenience favoured maintaining the status quo. The court therefore granted the injunction sought, restraining the respondent from interfering with the applicant's possession of the land pending determination of the suit.
Court Disposition
injunction granted
Orders
- An interlocutory injunction is hereby issued restraining the respondent, his agents, and servants from entering, constructing, putting up structures, or interfering with the applicant's possession and occupation of parcel No. Trans Mara/Moita/199 pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC NO. 50 OF 2018
SUMBI MALMALE..........................................................PLAINTIFF/APPLICANT
-VERSUS-
MOSES OLE KIPENO.............................................DEFENDENT/RESPONDENT
RULING
The Plaintiff/Applicant had by a Notice of Motion dated 18th July, 2018 sought for an order of injunction restraining the Defendant/Respondent or his agents and servants from entering, constructing or putting up structures or interfering with the possession and occupation of parcel No. Trans Mara/Moita/199 pending the hearing and determination of the suit.
The Application was based on the grounds that the Applicant has been in occupation of the dispute property for decades without any interruption and that the Defendant/Respondent has been encroaching on the dispute parcel of land and his attempts to stop him has failed and thus contends that the substratum of the suit will be gone if he is evicted from the land. The Applicant further states that even though he is in occupation of the land the same is registered in the name of the Defendant/Respondent the grounds upon which the Application is further supported by the affidavit of the applicant.
It is the Applicant’s averments that he has been in occupation of the suit parcel of land for decades even before demarcation started and it was during the demarcation exercise that he was shown the suit land and has been living on the same but he later learnt that title to the land was issued to the Defendant/Respondent and that on the 2nd day of July, 2018 the Defendant attempted to enter the land to evict him from the same.
The Application was opposed by the Defendant/Respondent in which he contends that he is the registered proprietor of the suit land and was issued with a title to the said land on 9th January,2018. He states that the suit land has been vacant and unoccupied.
I have read the application before me and the submissions filed by counsel. This is an Application with discretionary orders of injunction the grounds upon which an injunction can be granted is now well settled. As whether the applicant has established a prima facie case with probability of success, whether damages will be adequate compensation and in whose favour the balance of convenience tilts. From the pleadings the applicant’s claim is based on adverse possession which I will not define at this stage but suffice to say that he has been in occupation of the land for decades and it was in July, 2018 that the Respondent attempted to move to the land and remove his portion that the Applicant has satisfied the grounds for the grant of the orders of injunction and consequently I will allow the Notice of Motion dated 18th July, 2018.
DATED, SIGNED and DELIVERED in open court atNAROKon this 17TH day of DECEMBER, 2019
Mohammed Kullow
Judge
17/12/19
In the presence of: -
CA:Chuma/Kimiriny
N/A for the parties and their advocates