[2016] KEELC 573 (KLR)
The court found that both parties claimed overlapping ground positions for their respective plots, but neither provided authenticated or certified maps or beacon certificates to establish the precise location of their plots. The Applicant failed to provide sufficient evidence to establish a prima facie case for the...
Source-derived case information.
- Citation
- [2016] KEELC 573 (KLR)
- Parties
- Plaintiff: Wycliffe Wagunda Nyabola; Defendant: Charles Ndusu Karafa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2016
- Procedural Posture
- Interlocutory Application / Ruling on Application for Temporary Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Temporary Injunctions, Land Ownership Disputes, Beacon Certification, Plot Allocation, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliffe Wagunda Nyabola
Plaintiff
Charles Ndusu Karafa
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the Applicant has made a case for a temporary injunction at the interlocutory stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that both parties claimed overlapping ground positions for their respective plots, but neither provided authenticated or certified maps or beacon certificates to establish the precise location of their plots. The Applicant failed to provide sufficient evidence to establish a prima facie case for the grant of a temporary injunction. The court noted that the relevant county and national agencies may need to be enjoined to assist in determining the official ground positions and maps. Consequently, the Applicant did not meet the threshold for the grant of a temporary injunction at the interlocutory stage, and the application was dismissed with costs to the Respondent.
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 1st April 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 69 OF 2016
WYCLIFFE WAGUNDA NYABOLA.......................................PLAINTIFF
VERSUS
CHARLES NDUSU KARAFA..............................................DEFENDANT
RULING
1. Wycliffe Wagunda Nyabola, the Applicant, through notice of motion dated 1st April 2016, seeks to have Charles Ndusu Karafa, the Respondent, restrained from interfering with his use of Kisumu/Mamboleo/294-SG and 295 -SG pending the hearing and determination of the suit. The Applicant listed two grounds on the notice of motion which is also supported by his affidavit sworn on 1st April 2016.
2. The Respondent opposed the application through the affidavit sworn by himself on 12th April 2016.
3. The application came up for hearing on 21st June 2016 when Mr. Nyanga and Kimanga, learned counsel for the Applicant and Respondent respectively, made their rival verbal submissions.
4. The main issue for the court's determination are as follows:
a) Whether the Applicant has made a case for temporary injunction order this interlocutory stage.
b) Who pays the costs.
5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, rival submissions by counsel and come to the following finding;
a) That the Applicant bought the plots reference Kisumu Mamboleo/294-SG and 295 -SGunder the sale agreement dated 17th June 2015, from oneEsther K. Lugalla.
b) That the map availed by the Applicant indicates the ground position of the two plots to between plot numbers 293 and 502 just below a large plot for “STERING.” The map is however not signed or certified as a true copy and the court is unable to authenticate its source.
c) That the Respondent was allocated plot No. Kisumu/Mamboleo/502 -SGvide letter of offer dated 19th November 2010, and boughtKisumu/Mamboleo/501 – SGfrom Racheal Apiyo under agreement dated 5th November 2013. That the ground position of plot number501 -SG and 502 – SG is shown to be to the right of plot number500 according to the map provided by the Respondent. The map is also not signed or certified by the public offices concerned and the court is not able to confirm its authenticity.
d) That the same ground position claimed by the Applicant to be plot 295 -SG is the same spot the Respondent plot number501-SG is positioned.
e) That none of the parties has provided the court with evidence of their plots beacons certificates and the parties may need to consider enjoining the relevant county and national agencies to assist the parties in determining the ground position of their respective plots and the official map of the area.
6. That in view of the foregoing, the court finds that the Applicant has failed to establish a case for issuance of temporary injunction at this interlocutory stage.
The notice of motion dated 1st April 2016 is therefore dismissed with costs.
It is so ordered.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 14TH DAY OF SEPTEMBER 2016
In presence of;
Plaintiff ABSENT
Defendant ABSENT
Counsel Mr. Arikho for Plaintiff/Applicant
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
14/9/2016
S.M. Kibunja J.
Oyugi Court Assistant
Mr Arikho for Plaintiff/Applicant
Court: The ruling dated and delivered in open court in presence of Mr. Arikho for the Plaintiff/Applicant
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
14/9/2016