Case Metadata |
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| Case Number: | Civil Suit 8 of 2010 |
|---|---|
| Parties: | RECHO NEKESA NGOKHO v BEATRICE NGOKHO, MELAP NGOKHO, PETER NGOKHO, AMOS NGOKHO, JAIRUS NGOKHO & DAVID MASIKA NGOKHA |
| Date Delivered: | 13 Apr 2011 |
| Case Class: | Civil |
| Court: | High Court at Kitale |
| Case Action: | Ruling |
| Judge(s): | Martha Karambu Koome |
| Citation: | RECHO NEKESA NGOKHO v BEATRICE NGOKHO & 5 others [2011] eKLR |
| Case Summary: | ..... |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL SUIT NO. 8 OF 2010
AND
MELAP NGOKHO...............................................................} 2ND DEFENDANT
AMOS NGOKHO................................................................} 4TH DEFENDANT
JAIRUS NGOKHO .............................................................} 5TH DEFENDANT
DAVID MASIKA NGOKHA .................................................} 6TH DEFENDANT
2. According to the applicant, she was allocated the suit premises measuring 17.0 Ha in 1966 by the Settlement Fund Trustees. She annexed a copy of the allotment letter and she was subsequently issued with a title No. Kakamega/Nzoia/198 in November 2009. The applicant complains that the respondents and the wives and children of the late Jeremiah Ngokho Wamocho who was also her husband have interfered with her peaceful occupation of the suit land. The respondents have their own parcel of land which was allotted to them, being plot No. 197 Nzoia scheme. The respondents have however invaded the plaintiff’s land and threatened to throw her out of the suit land that is why she is seeking for an order of injunction.
The principles to guide the court on whether to grant a mandatory order of injunction are well articulated in a long line of authorities by the Court of Appeal especially in the case of Kenya Breweries Ltd. & Another Vs. Washington Okeyo C. A. Civil Appeal NO. 322 (Nairobi) (unreported) at page 3. Their Lordships quoted with approval the Text Vol. 24 of Haslbury Laws of England 4th Edition paragraph 948 which reads as follows:-
“a mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard then was required for a prohibitory injunction.”
4. In this case, the respondents were duly served with the application. However they did not file any replying affidavit thus the facts deposed to by the applicant are not contraverted. The applicant has annexed a copy of the letter of allotment that was issued to her in 1966. Subsequently she was issued with a title which she has annexed to support her claim that she is the sole proprietor of the suit premises. In my view, this is a clear case where a mandatory order of injunction can be granted. Because the applicant is the registered owner of the suit premises and she complains that the respondents have been interfering with her peaceful occupation of her land. Accordingly, I allow the notice of motion dated 29th March, 2010 in terms of prayer No. 1. The applicant shall also have the cost of this application.
Ruling read and signed on 13th April, 2011.
M. KOOME
JUDGE
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