[2013] KEHC 1829 (KLR)
The court found that the Plaintiff had provided documentary evidence establishing him as the registered owner of the suit parcels, Samia/Budongo/1699 and Samia/Budongo/245. The Defendants failed to produce any documentary evidence of ownership or a superior claim to the land. Applying the principles in Giella v...
Source-derived case information.
- Citation
- [2013] KEHC 1829 (KLR)
- Parties
- Plaintiff: Sylvester Okumu; Defendant: Ambrose Osalo; Defendant: Paskal Ojiambo Osalo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Case 52 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- Plaintiff's application for temporary injunction allowed.
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Prima Facie Case, Land Title, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Okumu
Plaintiff
Ambrose Osalo
Defendant
Paskal Ojiambo Osalo
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case to warrant the grant of a temporary injunction against the Defendants.
- 2 Whether the Defendants have demonstrated a superior title or right to the suit land over the Plaintiff.
- 3 Whether the Plaintiff is entitled to the orders sought pending the hearing and determination of the main suit.
Ratio Decidendi
The court found that the Plaintiff had provided documentary evidence establishing him as the registered owner of the suit parcels, Samia/Budongo/1699 and Samia/Budongo/245. The Defendants failed to produce any documentary evidence of ownership or a superior claim to the land. Applying the principles in Giella v Cassman Brown, the court held that the Plaintiff had established a prima facie case with a high chance of success. Consequently, the Plaintiff was entitled to a temporary injunction restraining the Defendants from interfering with the suit land pending the hearing and determination of the main suit.
Court Disposition
Plaintiff's application for temporary injunction allowed.
Orders
- Temporary injunction granted restraining the Defendants, their agents, servants, or anyone acting under them from farming, planting, tilling, using, or in any other way interfering with Samia/Budongo/1699 pending the hearing and determination of the suit.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
CIVIL CASE NO.52 OF 2013.
SYLVESTER OKUMU………………………..PLAINTIFF/RESPONDENT.
VERSUS
AMBROSE OSALO…………………..1ST DEFENDANT/RESPONDENT
PASKAL OJIAMBO OSALO………2ND DEEFENDANT/RESPONDENT
R U L I N G.
Sylvester Okumu, the Plaintiff herein filed the notice of motion under certificate of urgency dated 12thJuly, 2013 through M/S. Maloba & co. advocates, for temporary injunction against the Defendants restraining them, their agents, servants and or anyone acting under them from farming, planting, tiling, using and or in any other way interfering with Samia/Budongo/1699. The application is based on the five grounds on the face of the application, the supporting and supplementary affidavits sworn by the Plaintiff on 12th July, 2013 and 24th July, 2013. The application is opposed by the Defendants through the replying affidavit sworn by the 1st Defendant on 18th July, 2013 and filed through M/S. Wanyama and co. advocates.
When the matter came up for hearing on 31stJuly, 2013, M/s Maloba and Mr. Wanyama representing the Plaintiff and Defendants respectively consented to have the application dealt with through written submissions. The Plaintiff’s counsel filed their written submissions dated 29th August, 2013 on the same date while the Defendants’ counsel filed theirs dated 23rd September, 2013 on the same date.
The court has carefully considered the grounds on the face of the application, supporting, supplementary and replying affidavits plus the written submissions by counsel and find as follows;-
That from the copy of certificate of official search for Samia/Budongo/1699 marked S.O – 1, attached to the supporting affidavit and copy of the green card for Samia/Budongo/245marked S.O 1 and attached to the supplementary affidavit it is clear that the two parcels of land are registered in the names of the Plaintiff.
That the Defendants, other than claiming to have been using a portion of land Samia/Budongo/245 for seven years, have not annexed any documentary evidence to show that they are registered owners of the said land. The Defendants have not shown that they have a better title over the land in question than the Plaintiff so as to be allowed to remain on the land as this case is heard to conclusion.
That the Plaintiff having availed documentary evidence as the owner of the two parcels of land has satisfied the court that he has a prima facie case with a high chance of success as required in the case Giella – vs- Cassman Brown and company limited (1973) EA 318 and therefore entitled to temporary injunction as prayed in the application dated 12th July, 2013.
As shown above, the court finds that the Plaintiff’s application dated 12th July, 2013 has merit and is allowed in terms of prayer 3 with costs in the cause.
It is so ordered.
S.M. KIBUNJA.
JUDGE.
DATED AND DELIVERED ON 23rd DAY OF October, 2013.
IN THE PRESENCE OF;
JUDGE.