[2018] KEELC 2743 (KLR)

[2018] KEELC 2743 (KLR)

The court found that the Plaintiff had demonstrated a prima facie case with a probability of success, as the Defendant failed to provide proof of purchase or a sale agreement and the Plaintiff's evidence of a trust arrangement was more plausible. The Plaintiff also established that he would suffer irreparable harm if the Defendant were not restrained, as the Defendant had already sold one subdivided parcel without remitting proceeds and threatened eviction. The court held that the balance of convenience favored preserving the status quo pending determination of the main suit. Accordingly, the court granted a temporary injunction restraining the Defendant from dealing with the suit...

Citation
[2018] KEELC 2743 (KLR)
Parties
Plaintiff: Thomas Schiering; Defendant: Nereah Micheal Said
Court
Environment and Land Court
Court Station
Environment and Land Court at Mombasa
Jurisdiction
Kenya
Judgment Date
13 March 2018
Case Number
Environment & Land Case 411 of 2016
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Outcome
Application allowed in part; temporary injunction granted; costs to abide outcome of main suit.
Judges
LC Komingoi
Legal Topics
Trusts in Land, Temporary Injunctions, Ownership Disputes
Source Language
English
Land and Property Civil Procedure Trusts in Land Temporary Injunctions Ownership Disputes

Case Brief

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Parties

Thomas Schiering

Plaintiff

Nereah Micheal Said

Defendant

Procedural Posture

Notice of Motion / Ruling on Interlocutory Injunction Application

Legal Issues

  1. 1 Whether there was an agreement by the Defendant to hold land in trust for the Plaintiff.
  2. 2 Whether the Plaintiff has met the threshold for grant of temporary injunctions.
  3. 3 Who should bear the costs of the application.

Ratio Decidendi

The court found that the Plaintiff had demonstrated a prima facie case with a probability of success, as the Defendant failed to provide proof of purchase or a sale agreement and the Plaintiff's evidence of a trust arrangement was more plausible. The Plaintiff also established that he would suffer irreparable harm if the Defendant were not restrained, as the Defendant had already sold one subdivided parcel without remitting proceeds and threatened eviction. The court held that the balance of convenience favored preserving the status quo pending determination of the main suit. Accordingly, the court granted a temporary injunction restraining the Defendant from dealing with the suit...

Court Disposition

Application allowed in part; temporary injunction granted; costs to abide outcome of main suit.

Orders

  • The Defendant, her servants, agents, and employees are restrained from subdividing, selling, disposing, transferring, constructing, evicting, threatening, or interfering in any manner with Kwale/Galu/Kinondo/2458 and Kwale/Galu/Kinondo/2459 and the Plaintiff, his family, and occupants pending hearing and...
  • Costs of the application to abide the outcome of the main suit.