[2013] KEHC 4893 (KLR)
The court found that the applicants had demonstrated, on a prima facie basis, that they are the registered owners of the suit property by producing a certificate of title. The respondent, having failed to respond or appear, did not challenge the applicants' evidence or assert any claim to the property. The court...
Source-derived case information.
- Citation
- [2013] KEHC 4893 (KLR)
- Parties
- Applicant: Wilson Tanui Barno; Applicant: Stanley Kinga Mwendia; Applicant: Enock Kipruto Salbei; Respondent: Jeniffer Kositany
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 257 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction
- Outcome
- Temporary injunction granted in favour of the applicants; costs awarded to the applicants.
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Tanui Barno
Applicant
Stanley Kinga Mwendia
Applicant
Enock Kipruto Salbei
Applicant
Jeniffer Kositany
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case for grant of a temporary injunction against the respondent.
- 2 Whether the applicants are the absolute registered owners of the suit property.
- 3 Whether the respondent's actions amount to trespass warranting injunctive relief.
Ratio Decidendi
The court found that the applicants had demonstrated, on a prima facie basis, that they are the registered owners of the suit property by producing a certificate of title. The respondent, having failed to respond or appear, did not challenge the applicants' evidence or assert any claim to the property. The court held that the applicants had established a prima facie case with a probability of success, and that the question of adequacy of damages did not arise since the respondent had not laid any claim to the property. Consequently, the court granted a temporary injunction restraining the respondent from disposing of, alienating, trespassing onto, occupying, cultivating, grazing,...
Court Disposition
Temporary injunction granted in favour of the applicants; costs awarded to the applicants.
Orders
- A temporary injunction restraining the respondent from disposing of, alienating, further trespassing onto, occupying, cultivating, grazing, interfering with and/or in any manner dealing with L.R. No.13287/45 pending determination of the suit.
- Costs of the application awarded to the applicants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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WILSON TANUI BARNO…………………..……………...1ST APPLICANT/PLAINTIFF
STANLEY KINGA MWENDIA……………...……………...2ND APPLICANT/PLAINTIFF
ENOCK KIPRUTO SALBEI………….……………………3RD APPLICANT/PLAINTIFF
VERSUS
JENIFFER KOSITANY………..…………………………...RESPONDENT/DEFENDANT
RULING
The applicants have deposed that they are the joint registered owners of L.R. No.13287/45 (the suit property) measuring approximately 10. 47 hectares. They have further alleged that the respondent, a daughter of the former President has without colour of right forcibly entered the suit property and embarked on acts of wanton wastage, using administration police officers.
The applicants have instituted this action for a declaration that they are the absolute registered owners of the suit property; for a permanent injunction against the respondent and for her eviction from the suit property.
In the meantime, the applicants seek in the instant motion that the respondent be restrained by an order of temporary injunction from:
“………disposing off, alienating, further trespassing onto, occupying, cultivating, grazing, interfering with and/or in any manner dealing with the suit land……………………”
From two affidavits of service filed on 31st August, 2012 and 5th November, 2012, I am satisfied that the respondent was served with both the application and the interpartes hearing notice, but failed to respond to the application or attend the court on the date the application was scheduled to be heard. That being so, the matters proceeded exparte.
The applicants have been able to demonstrate at this stage that prima facie, they are the registered owners of the suit property by exhibiting a copy of certificate of title showing that the property was transferred to them in 1995 by the previous proprietor, Dr. Laban Kiptui.
The respondent having failed to controvert these allegations, it follows that the applicants have a prima facie case with a probability of success. The question of adequacy of damages does not arise as the respondent has not laid any claim to the suit property.
For these reasons, there will be a temporary restraining orders in terms of paragraph 3 of the Notice of Motion pending the determination of this suit.
Costs to the applicants.
Dated and Signed at Nakuru this 18th day of January, 2013.
W. OUKO
JUDGE
Dated, Signed and Delivered at Nakuru this 5th day of February, 2013 by Hon. Justice M. J. Anyara Emukule.
JUDGE