Civil Suit 101 of 2010

Help

Advanced Search mode is suitable for finding a particular case when you have details that describe the case at hand e.g. (names of parties, case number, case year etc).
To find a case according to its meta data (names of parties, case number, and date of delivery, case year etc) one need not fill in all the fields. You may use any one or more search criteria; search using whatever information you have..

Download: PDF DOC DOCX PDF With Metadata Docx With Metadata XML Show Metadata

MILIMANI RESORT LIMITED & another v VINOD KUMAR RAMAOTTANAL PAL & 2 others [2011] eKLR

Case Metadata
Case Number:	Civil Suit 101 of 2010
Parties:	MILIMANI RESORT LIMITED & another v VINOD KUMAR RAMAOTTANAL PAL & 2 others
Date Delivered:	10 Nov 2011
Case Class:	Civil
Court:	High Court at Kisumu
Case Action:	Ruling
Judge(s):	Hilary Kiplagat Chemitei
Citation:	MILIMANI RESORT LIMITED & another v VINOD KUMAR RAMAOTTANAL PAL & 2 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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL SUIT NO. 101 OF 2010

MILIMANI RESORT LIMITED................... ....................1^ST PLAINTIFF

WALTER EDWIN OMINDE............................. .............2^ND PLAINTIFF

VERSUS

VINOD KUMAR RAMAOTTANAL PAL....... ..................1^ST DEFENDANT

ASHISH CHANDRAKAT RAYAT................... ...............2^ND DEFENDANT

MUNICIPAL COUNCIL OF KISUMU.................. .............3^RD DEFENDANT

RULING

The application before me is dated 30^th June 2010 seeking for temporary orders of injunction by the plaintiffs against the defendants from dealing, developing or in any way disturbing land parcel number KISUMU MUNICIPLAITY BLOCK 10 / 18. The application is based on the grounds on the face of the application and the affidavit of Walter Edwin Ominde sworn on 30^th June 2010. The said affidavit depones that the applicants are the registered owners of land parcel number KISUMU MUNICIPLAITY BLOCK 10 / 19 and 20 respectively. The 1^st and 2^nd defendants are the registered proprietors of land parcel number KISMU / MUNICIPALITY BLOCK 10/18. Apparently all the three (3) parcels are adjacent to each other. The applicants content that the said Block 10/18 although it’s in the names of the 1^st and 2^nd defendants was supposed to be a public utility. It was meant to be used for disposal of effluent or a sceptic tank.

However the 1^st and 2^nd defendants according to the applicants have fraudulently had themselves registered as proprietors and that they are in the process of carrying out construction to the detriment of the applicants who run a hotel facility in their plots.

I have perused the replying affidavit of the 1^st defendant sworn on 12^th July 2010, I notice from the same that they purchased lawfully the said property from Harvinder Singh Rehal and Rajinder Singh Rehal. They have exhibited all the conveyancing documents. I have no doubt from the documents filed herein that the parcel is in the name of the 1^st and 2^nd defendants.

The plaintiffs are asking me to issue an injunction and their main contention is that they stand to loose the use of the sceptic tank in the event that the defendants are allowed to carry out any construction on the suit property. The defendant have however argued that the plaintiffs have no locus standi to bring this suit. Black Law Dictionary 8^th Edition has defined locus standi to be “The right to bring an action or to be heard in a given forum”.

In my mind the fact that the plaintiffs own the adjacent property really gives them the right to bring this suit. The acts of the defendants whether positive or negative shall obviously affect or injure the plaintiffs. I have perused the maps attached to the said applications and I am persuaded of the close proximity between the parties herein.

The next issue for determination is whether or not the applicant are entitled to the orders sought herein. The celebrated case of Giella =vs= Cassman Brown [1973] E. A. 358 has set out the parameters of granting an injunction which I don’t need to reproduce here. Before arriving at my decision though it’s worth mentioning the 3^rd defendants replying affidavit sworn by its clerk a Mr. Daniel S. Nkere dated 8^th September 2011. The said affidavit confirmed that the property is indeed a public utility one meant for a sceptic tank. Though the 3^rd defendant has distance itself from questioning the title deed which is being held by the 1^st and 2^nd defendant, its letter dated 1^st October 2009 attached to the said replying affidavit speaks volumes. The said letter has gone ahead to quote the letter dated 19^th October 2005 from the Commissioner of Lands which originally owned the land (Lessor) which cast doubts on the validity of the said title. My ruling therefore is that the fact that on the face of it the government which is the lessor has question the validity of the title. The 3^rd defendant has equally done the same. This consequently permits me to rely on the Giella =vs Cassman Brown principle of injunction and state that the plaintiffs application ought to succeed. They have a prima facie case. I agree that pursuant to the provisions of the Registered Land Act Cap 300 Laws of Kenya, the same can still be challenged especially the process of acquisition which in this case the commissioner of lands has already raised some doubt. This is a matter though for trial.

Finally, the defendant have not demonstrated what and how they will suffer in the event of the injunction orders being granted. I however belief that they can be adequately compensated by way of damages.

The upshot of this therefore is that I shall grant the applicants prayers in terms of prayer 3, 4, and 5 of the said application with costs. The Applicants shall nevertheless issue undertaking as regards damages within fourteen (14) days from the delivery of this Ruling.

Dated, signed and delivered at Kisumu this 10^th day of November 2011.

H. K. CHEMITEI

JUDGE

HKC/aao

Download PDF DOC DOCX PDF With Metadata Docx With Metadata XML

Please enter advanced search options

Case Content:		Subject:
Case Number:		Parties:
Judge:		Court:
	Delivery Date Range:
From:		To:

Except for some material which is expressly stated to be under a specified Creative Commons license, the contents of this website are in the public domain and free from any copyright restrictions

Case Search

Civil Suit 101 of 2010

Case Metadata

Please enter advanced search options