Bamasala v Hero (Environment and Land Case 7 of 2019) [2019] KEMC 15 (KLR)

dangerous for me to allow an Ex-parte claim on it. In exercise of due diligence on my part, the plaintifi to take an inter partes hearing date on 13.06.2019. Hearing Notice To Issue 4. Pursuant to the order, the defendant herein was duly served. The defendant filed a Replying Afidavit, sworn at Hola by Jerald Kofa Hero, on 03.07.2019, in which he basically referred us to the contents of his defence which he verified to be the truth. In his Defence dated 24.06.2019, the defendant prays that the plaintifi's claim and prayers be dismissed with costs. 5. Parties herein finally filed and exchanged their written submissions herein in which they attacked each other on the issue of ownership. The plaintifi submitted that he was allocated the land by the Malindi ya Ngwena Village Committee and the Area Chief in 2004. That the documents in possession by the defendant purporting to have been allocated the plot by the County Government in 2017 are therefore fraudulent. That allowing the defendant to develop that plot will be infringing the plaintifi's right to own property. 6. The defendant on the other hand has submitted that the plaintifi must first demonstrate that he owns the land parcel herein. That he has shown nothing to this court to demonstrate that he is in occupation of the land parcel. That what he has presented to this court are mere allegations. That in the premises, no prima facie case has been established with any chance of success by the applicant herein to warrant the orders being sought. That the balance of convenience tilts in his favour as he is bound to sufier loss by disturbances of the applicant's unlawful acts. That this Court should not be used to advance an illegality without any or suficient reason or evidence. That this application is an abuse of the courts and should therefore be dismissed with costs. Determination 7. I do agree with the defendant in his submissions. The principles for granting interlocutory injunctions are well settled in the famous Giella vrs Cassman Brown Case; and enriched by countless judicial decisions and pronouncements. There must be a prima facie case disclosed, with a probability of success. In simple terms, the plaintifi should at least demonstrate that he owns the land parcel, the parcel itself, and that the defendant herein, through unlawful acts, has infringed or threatened to infringe on his right to the ownership. In applications, such as the present one, that demonstration is done through afidavit evidence. 8. I did from the outset herein found that mere allegations without proof, or at least something to demonstrate ownership is not enough and I may therefore not want to go into the merit of the main suit herein, since I shall still be the one to hear and make a determination thereon. However, for reasons that I advanced in refusing to grant Ex-parte orders herein, I do similarly refuse to grant the prayers sought in the application herein. It demonstrates indulgence on the part of the plaintifi that even despite my finding on the application at the Ex-parte stage, he still went ahead with the application and the supporting afidavit as filed without caring to amend or appropriately avail evidence to establish his claim in a clearer manner. The constitutional requirement in Article 159(2)(d), that justice should be administered without undue regard to procedural technicalities should not be a basis for a party to be careless with his case to an extent that he fails to avail the requisite evidence to prove his or her claim. 9. I have however noted that parties herein have filed several documents possibly in anticipation of the main hearing of the suit herein. I do believe that they could have also lined up some witnesses. I do therefore believe that noting that the parties are not represented, the hearing of the main suit shall be the best fora to dispose of the claim herein and I do therefore hereby dismiss the application herein with costs to the defendant. Parties to take all the necessary steps so as to have the pleadings closed, and a case conference held as soon as possible. https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/15/eng@2019-11-05 2

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DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 05TH DAY OF NOVEMBER, 2019. ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Plaintifi: Present Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/15/eng@2019-11-05 3

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