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ELCAllowedNot stated in the judgment· [2017] KEELC 3 (KLR)

Julius Kamau Karanja v Elvis Melita Suyianka & another [2017] KEELC 3 (KLR)

Environment and Land Court
11 July 2017
COChristine Ochieng
648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court stopped a trespasser's construction on purchased land because the buyer held all ownership documents and the seller never contested the case.

What this practically means

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Executive summary

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This is an interlocutory ruling on a notice of motion dated 9th May, 2017 and filed on 11th May, 2017, brought by the plaintiff under Order 40 Rules 1, 2 & 10 of the Civil Procedure Rules seeking an interim injunction in respect of land parcel No. 3009/RESIDENTIAL - NOONKOPIR TRADING CENTRE. The plaintiff, Julius Kamau Karanja, deposed that he purchased the suit land from the 1st defendant, Elvis Melita Suyianka, for Kshs 400,000 under a sale agreement executed with six witnesses; the plot was transferred to his name by the Ol Kejuado County Council, and he has paid all rates and rents, as evidenced by rate clearance certificates and receipts. He alleged that the 1st defendant directed the 2nd defendant to the suit land, where she has trespassed and commenced construction. The application proceeded unopposed on 29th May, 2017: the defendants were properly served per the affidavit of service but neither entered appearance nor filed a replying affidavit. Counsel for the plaintiff sought prayer (2) and relied on the transfer letter, sale agreement, search certificate, clearance certificates and payment receipts. Framing the sole issue as whether the interim injunction ought to be granted pending the hearing and finalization of the main suit, the court applied the Giella v Cassman Brown principles. Finding the plaintiff the legal allottee with all documents in his name and no contrary evidence, the court held a prima facie case warranting an injunction had been established, raising triable issues best determined at trial. Prayer (2) was allowed, with costs in the cause. The judgment is dated 11th July, 2017 and was delivered at Kajiado by Christine Ochieng, Judge.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success to warrant an interim injunction

Holding

The court found a prima facie case was established: all documents pertaining to the suit land are in the plaintiff's names and there was no contrary evidence.

Reasoning

The application was unopposed; the defendants were served but neither entered appearance nor filed a replying affidavit. The plaintiff produced a sale agreement showing purchase from the 1st defendant for Kshs 400,000, a Letter of Transfer from Ol Kejuado County Council, a search certificate showing he is the lawful owner, and rate clearance certificates and receipts evidencing payment of rates and rent. The court held that the plaintiff, as legal allottee, raised triable issues best determined at trial, justifying the injunction.

p. 2

Legal principles established

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  • Temporary injunctions are determined on the principles in Giella v Cassman Brown: prima facie case, irreparable injury, and balance of convenience.
  • Where an application is unopposed and no replying affidavit rebuts the applicant's evidence, the court may act on the uncontroverted material.

Court orders

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  1. 1.Prayer (2) of the Plaintiff's application dated 9th May, 2017 and filed on 11th May, 2017 is allowed
  2. 2.Costs to be in the cause
Jurisdiction invoked
Order 40 Rules 1, 2 & 10 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Julius Kamau Karanja v Elvis Melita Suyianka & another [2017] KEELC 3 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3/eng@2017-07-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.