[2016] KEELC 978 (KLR)
The court found that the plaintiff failed to establish a prima facie case as required for the grant of an interlocutory injunction. The only evidence produced by the plaintiff was a sale agreement with Rashid Abdalla, but there was no proof of how Rashid Abdalla acquired title to the disputed land. The court noted...
Source-derived case information.
- Citation
- [2016] KEELC 978 (KLR)
- Parties
- Plaintiff: William Kahindi Nyundo; Defendant: Kenga Chengo Kasisi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 40 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Ownership Disputes, Title Verification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kahindi Nyundo
Plaintiff
Kenga Chengo Kasisi
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction.
- 2 Whether the plaintiff has demonstrated proprietary interest in the disputed land sufficient to restrain the defendant from interference.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case as required for the grant of an interlocutory injunction. The only evidence produced by the plaintiff was a sale agreement with Rashid Abdalla, but there was no proof of how Rashid Abdalla acquired title to the disputed land. The court noted that the same issue arose in the earlier criminal proceedings, where it was held that exclusive title had not been established and the vendor could not transfer a title he did not possess. As neither the plaintiff nor his vendor demonstrated proprietary interest in the suit property, the plaintiff did not meet the threshold for injunctive relief. The application was therefore...
Court Disposition
application dismissed
Orders
- The application dated 11th March 2015 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 40 OF 2015
WILLIAM KAHINDI NYUNDO...............................................................PLAINTIFF
=VERSUS=
KENGA CHENGO KASISI....................................................................DEFENDANT
R U L I N G
The Application before me is the one dated 11th March, 2015 seeking for the following orders:-
(a) Pending the hearing and determination of this suit, an injunction do issue restraining the defendant whether by himself, his family members, servants, employees and/or agents or any others who may be claiming through him, from entering and undertaking any construction, cutting down crops, burning vegetation or in any manner whatsoever interfering with the Plaintiff's enjoyment of his portion of land which is part of plot NO. M7 Kilifi including throwing stones or any other objects at the residence of the applicant.
(b) The cost of this application are awarded to the Plaintiff.
The Application is grounded on the facts that the Plaintiff is the beneficial owner of the suit portion being part of plot number 7 Kilifi; that the Defendant has invaded the property and that the Defendant's defiance 13 years after he was stopped from the construction is an act of impunity.
In his Supporting Affidavit, the Applicant deponed that he is the beneficial owner of land measuring approximately 4 acres; that he purchased his land from one Rashid Abdalla vide an agreement dated 13th January, 2002 for Kshs.40,000 and that in the year 2003, the Defendant invaded the land.
According to the Applicant, the Respondent was arrested and charged for forcible detainer and that the trial court found as a fact that the land belonged to him (the Plaintiff).
In his response, the Respondent deponed that he is the owner of the disputed parcel of land; that he has stayed on the land for over 50 years together with his family and that the Plaintiff's suit does not have high chances of success.
The advocates filed brief submissions in which they reiterated their client's deposition. I have considered the said submissions.
The Plaintiff's claim in this matter is that he purchased land measuring approximately 4 acres consisting of land known as Block 7 at Mjibu Kibarani measuring 31. 2 acres.
The Plaintiff has produced the agreement he entered into with the purported seller, Mr. Rashid Abdalla for the 4 acres dated 15th January, 2002.
Other than the agreement of 15th January, 2002, the Plaintiff has not produced any other document to show how Mr. Rashid came to own either the whole of Block 7 or a part of the land thereof.
Indeed, the Respondent in this matter was accused in Kilifi Criminal Case No. 2239 of 2003 for forcible detainer.
According to the particulars of the offence, between 10th July, 2002 and 13th June, 2003, the accused (Defendant) without any colour of right held possession of plot no. 7.
After the trial court heard the matter, it held as follows:-
“Exclusive title has not been established as the one who sold to him Rashid did not establish title in the first place and could not transfer any title.....”
The trial court proceeded to acquit the accused (Defendant).
Just like in the criminal case, the Plaintiff has not established how Mr. Rashid came to own the disputed land.
There is no evidence before the court to show the proprietary interest of either the Plaintiff or Mr. Rashid in the suit property.
In the circumstances, the Plaintiff has not established that he has a prima facie case with chances of success.
Consequently, I dismiss the Application dated 11th March 2015 with costs.
Dated, signed and delivered in Malindi this 22ndday of April, 2016.
O. A. Angote
Judge