[2016] KEELC 346 (KLR)
The court found that the plaintiff had demonstrated ownership of the suit property by producing a valid Certificate of Title and a letter of consent from the Nakuru Land Control Board permitting subdivision. The defendant failed to file any response or provide evidence of any right over the property. The court held...
Source-derived case information.
- Citation
- [2016] KEELC 346 (KLR)
- Parties
- Plaintiff: Thuo Commercial Agencies Limited; Defendant: Kenya Airports Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Injunctive Relief, Ownership Disputes, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thuo Commercial Agencies Limited
Plaintiff
Kenya Airports Authority
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of an interlocutory injunction.
- 2 Whether the plaintiff stands to suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff had demonstrated ownership of the suit property by producing a valid Certificate of Title and a letter of consent from the Nakuru Land Control Board permitting subdivision. The defendant failed to file any response or provide evidence of any right over the property. The court held that the plaintiff had established a prima facie case with a probability of success, and the defendant's actions in interfering with the plaintiff's activities on the land were unjustified. Consequently, the court granted the interlocutory injunction restraining the defendant and its agents from entering or interfering with the plaintiff's activities on the suit property...
Court Disposition
application allowed
Orders
- Pending hearing and determination of the suit, the defendant and/or its servants/agents are restrained from entering, being upon, or in any other way interfering with the plaintiff's activities in land parcel L.R No. 4731/1 East of Nakuru Municipality.
- The plaintiff shall have the costs of this application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 152 OF 2016
THUO COMMERCIAL AGENCIES LIMITED….PLAINTIFF
VERSUS
KENYA AIRPORTS AUTHORITY ……….……..DEFENDANT
RULING
(Application for injunction; principles to be applied; plaintiff demonstrating ownership of the suit property by displaying title; claim that defendant is interfering with the same; no response filed by the defendant; prima facie case demonstrated; application allowed)
1. This suit was commenced by way of plaint filed on 4 May 2016. Together with the plaint, the plaintiff filed an application for injunction, which application is the subject of this ruling.
2. The case of the plaintiff is that it is the registered proprietor of the land registered as L.R No. 4731/1 East of Nakuru Municipality measuring approximately 82. 7 Hectares. It is alleged that the defendant, which is a statutory corporation, has through its servants/agents, illegally entered the suit property and threatened to forcefully remove the plaintiff. It is pleaded in the plaint, that the defendant has issued strict instructions to its servants/agents to bar the plaintiff from carrying out any activities on the suit property, which action is illegal. In the suit, the main prayer is for the defendant to be permanently restrained from the suit property.
3. The supporting affidavit has been sworn by David Thuo, a director of the plaintiff company. He has inter alia deposed that the plaintiff was issued with a Certificate of Title on 9 March 1984 and he annexed a copy of the same. In exercise of its rights over the property, the plaintiff has embarked on subdivision of the same into smaller plots for sale and has appointed a firm of surveyors to carry out the subdivision. The plaintiff has also employed a contractor to open up roads within the suit property. It is deposed that on 21 October 2015, while the surveyor and contractor were in the course of their work, the servants/agents of the defendant moved into the suit property and ordered them to stop activities. This, it is contended, has greatly inconvenienced the plaintiff and is illegal. It is for that reason that the plaintiff seeks orders to stop the defendant from the suit property.
4. Despite being served with summons and the application, the defendant/respondent only filed a Memorandum of Appearance. Neither did counsel for the respondent appear at the inter partes hearing of the application. The only material that I have is therefore that tendered by the plaintiff.
5. To succeed in an application of this nature, an applicant needs to demonstrate a prima facie case with a probability of success; demonstrate that he/she stands to suffer irreparable loss unless the injunction is granted; and if in doubt, the court will determine the application on a balance of convenience. These principles were laid down in the case of Giella vs Cassman Brown (1973) EA 358, and I stand guided by the same.
6. From the material before me, I can see that the plaintiff appears to have a title to the suit property. The same was issued on 9 March 1984. I have also seen a letter of consent from the Nakuru Land Control Board, dated 20 August 2015, permitting the plaintiff to subdivide the land into 1126 portions. The defendant has not tabled anything to demonstrate that it has any right over the suit property. Its actions of sending persons to stop the plaintiff's activities on the said land, to me, appear completely unjustified. I have no doubt in my mind that the plaintiff has demonstrated a prima facie case with a probability of success. I therefore allow this application and pending hearing and determination of this suit, the defendant and/or its servants/agents are hereby ordered not to enter, be upon, or in any other way interfere with the plaintiff's activities in the land parcel L.R No. 4731/1 East of Nakuru Municipality. The plaintiff shall also have the costs of this application.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 13th day of October 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of : -
Mr. Geoffrey Otieno for the plaintiff/applicant
No appearance on the part of M/s Kithure Kindiki & Company Advocates for the defendant/respondent
Court Assistant: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU