[2017] KEELC 1903 (KLR)
The court found that the Plaintiff had established a prima facie case by demonstrating registered ownership of the Suit Property and providing evidence of the Defendant's encroachment and unauthorized business activities. The court was satisfied that the Plaintiff would suffer irreparable harm if the Defendant...
Source-derived case information.
- Citation
- [2017] KEELC 1903 (KLR)
- Parties
- Plaintiff: Umagara Wiyonere Co. Limited; Defendant: Samuel Gitonga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 459 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction
- Outcome
- injunction granted in favour of the Plaintiff; costs to the Plaintiff
- Judges
- AK Bor
- Legal Topics
- Injunctions, Land Ownership, Trespass, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Umagara Wiyonere Co. Limited
Plaintiff
Samuel Gitonga
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of an injunction against the Defendant.
- 2 Whether the Plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the Plaintiff had established a prima facie case by demonstrating registered ownership of the Suit Property and providing evidence of the Defendant's encroachment and unauthorized business activities. The court was satisfied that the Plaintiff would suffer irreparable harm if the Defendant continued to occupy and use the land, as damages would not be an adequate remedy. The Defendant's failure to respond or appear further supported the Plaintiff's case. Applying the principles in Giella v Cassman Brown, the court concluded that the Plaintiff was entitled to an interlocutory injunction restraining the Defendant from encroaching or carrying on business on the Suit...
Court Disposition
injunction granted in favour of the Plaintiff; costs to the Plaintiff
Orders
- An injunction is issued prohibiting the Defendant, his agents or servants from carrying on the business of a car garage and car wash on the Suit Property or encroaching on it until this suit is heard and determined.
- The Plaintiff will have the costs of this suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 459 OF 2017
UMAGARA WIYONERE CO. LIMITED…………....PLAINTIFF
VERSUS
SAMUEL GITONGA ………………………….....DEFENDANT
RULING
The Plaintiff, which is the registered owner of L.R. No. 28395 (“the Suit Property”) situated in Nairobi County, seeks an order of injunction to restrain the Defendant from encroaching onto the Plaintiff’s land and running a car garage and car wash business on the Suit Property in Santon Kasarani Nairobi. The Defendant was served but declined to accept service stating that the matter could be settled in the chief’s office. The Plaintiff annexed a copy of a police abstract issued by the police when it reported the encroachment on its property at Kasarani Police Station in June this year. The Plaintiff also annexed photographs showing the structure the Defendant had constructed on the Suit Property which he is using as a shade for the garage and car wash. A copy of a letter from the Ministry of Interior summoning the Defendant to the chief’s office on 23rd June, 2017 was also attached.
The court is satisfied that the Plaintiff as a prima facie case against the Defendant and that it will suffer irreparable damage if the orders are not granted. The court issues an injunction prohibiting the Defendant, his agents or servants from carrying on the business of a car garage and car wash on the Suit Property or encroaching on it until this suit is heard and determined. The Plaintiff will have the costs of this suit.
Dated and delivered at Nairobi this 31st day of July 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Wanyoike for the Plaintiff
No appearance for the Defendant
Mr. V. Owuor- Court Assistant