[2014] KEELC 195 (KLR)
The court found that the applicant, Turbo Munyaka Co-operative Society Limited, had locus standi to bring the suit because it created Munyaka Trading Centre to hold and distribute the land to its members, a task not yet completed. The applicant's liquidation was suspended pending finalization of the sub-divisions,...
Source-derived case information.
- Citation
- [2014] KEELC 195 (KLR)
- Parties
- Plaintiff: Turbo Munyaka Co-operative Society Limited; Defendant: Joseph Mbugua Hosea
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 58 of 2014
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in favour of the applicant
- Judges
- EO Obaga
- Legal Topics
- Locus Standi, Injunctive Relief, Land Ownership Disputes, Cooperative Societies, Waste of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Turbo Munyaka Co-operative Society Limited
Plaintiff
Joseph Mbugua Hosea
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has locus standi to bring the suit against the defendant.
- 2 Whether the plaintiff is entitled to interlocutory injunctive orders restraining the defendant from interfering with the suit land.
Ratio Decidendi
The court found that the applicant, Turbo Munyaka Co-operative Society Limited, had locus standi to bring the suit because it created Munyaka Trading Centre to hold and distribute the land to its members, a task not yet completed. The applicant's liquidation was suspended pending finalization of the sub-divisions, so it had not ceased to exist. The applicant demonstrated a prima facie case with a probability of success, as it was the original owner and was actively subdividing the land for its members, while the respondent's actions interfered with this process. The court confirmed the temporary injunction, restraining the respondent from interfering with the suit land until the hearing...
Court Disposition
interlocutory injunction granted in favour of the applicant
Orders
- The temporary injunction granted on 03/4/2014 is confirmed and shall remain in force until the hearing and determination of the suit.
- The applicant shall have costs of this application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 58 OF 2014
TURBO MUNYAKA CO-OPERATIVESOCIETY LIMITED::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
JOSEPH MBUGUA HOSEA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
The applicant is a Co-operative Society duly registered under the Co-operative Societies Act Cap 490 Laws of Kenya. The applicant had set aside land for a trading centre which it registered in the name of Munyaka Trading Centre.The property is known as Makutano/Kapsara Block 2/Turbo Munyaka/247. When the applicant started subdividing the land for distribution to its members, the respondent moved into the property and started digging trenches and fencing it. This forced the applicant to move to court seeking injunctive orders against the respondent restraining him from interfering with the suit land.
The applicant contends that the action by the respondent is leading to waste of the property and that the respondent has no interest in the suit property and therefore should be restrained by way of injunction from proceeding further with his activities.
The applicant's application is opposed by the respondent through replying affidavit sworn on 5/5/2014 and a further affidavit sworn on 3/6/2014. The respondent contends that the applicant has no locus standi to bring this suit as the plot in issue is not registered in its name.The respondent further contends that the applicant ceased to exist once it completed its task of acquiring land for its members.
The respondents further contends that he is the owner of the plot in issue as per the decree of court in land case No. 28 of 2011 at the Chief Magistrate's court Kitale.
I have gone through the applicant's application as well as the opposition thereto by the respondent. The issues which emerge for determination are firstly whether the plaintiff has locus standi to bring this suit against the defendant and secondly whether the applicant has demonstrated that it is entitled to injunction orders.
The principles for grant of injunction are well settled. First an applicant must demonstrate that he has a prima facie case with probability of success. Secondly an injunction will not normally begranted unless otherwise the applicant will suffer irreparable loss which will not be compensated in damages. Thirdly if the court is in doubt it will decide the application on a balance of convenience.
I will first determine whether the applicant has locus standi to bring this case. The respondent contends that the plot in issue is registered in the name of Munyaka trading centre and that therefore the plaintiff/Applicant should not be the one suing the respondent. It is true that the plot in issue is registered under Munyaka Trading Centre. Munyaka Trading Centre was created by the plaintiff to hold land which was to be sub-divided and given to its members. The suit land was curved for purposes of a trading centre. The name having been created by the applicant it cannot be argued that the applicant has nothing to do with it. The minutes annexed by the respondent to his further affidavit are clear that Munyaka trading centre was created by the applicant to hold the plot for distribution to its members who are said to be 81 in number. The applicant was to distribute the plot to its members before it will be voluntarily dissolved or dissolved by the Commissioner of Co-operatives. The applicant has not accomplished that task and for that reason it cannot be dissolved. The argument by the respondent that the applicant ceased to exist is therefore without basis. The liquidation of theapplicant was suspended pending finalization of the sub-divisions of the trading centre plots. I therefore find that the applicant has locus standi to bring this suit against the respondent.
The applicant has demonstrated that it has a prima facie case with probability of success. The applicant has demonstrated that it was the original owner of the land which included the area now designated as Munyaka trading centre. The applicant is in the process of sub- dividing the suit land for sub-division to its members. The respondent is interfering with this process. The respondent should not be allowed to interfere with the process. I do not have to consider the other two principles. The application by the applicant is well founded. The temporary injunction given on 03/4/2014 is hereby confirmed. The same shall remain in force until the hearing and determination of this suit. The applicant shall have costs of this application.
It is so ordered.
Dated, signed and delivered at Kitale on this 30th day of September, 2014.
E. OBAGA
JUDGE
In the presence of M/S Nyakibia for applicant. Court Clerk Kassachoon.
E. OBAGA
JUDGE
30/9/2014