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|Case Number:||Civil Suit 101 of 2010|
|Parties:||MILIMANI RESORT LIMITED & another v VINOD KUMAR RAMAOTTANAL PAL & 2 others|
|Date Delivered:||10 Nov 2011|
|Court:||High Court at Kisumu|
|Judge(s):||Hilary Kiplagat Chemitei|
|Citation:||MILIMANI RESORT LIMITED & another v VINOD KUMAR RAMAOTTANAL PAL & 2 others  eKLR|
|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
CIVIL SUIT NO. 101 OF 2010
However the 1st and 2nd 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.
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 8th Edition has defined locus standi to be “The right to bring an action or to be heard in a given forum”.
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  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 3rd defendants replying affidavit sworn by its clerk a Mr. Daniel S. Nkere dated 8th September 2011. The said affidavit confirmed that the property is indeed a public utility one meant for a sceptic tank. Though the 3rd defendant has distance itself from questioning the title deed which is being held by the 1st and 2nd defendant, its letter dated 1st October 2009 attached to the said replying affidavit speaks volumes. The said letter has gone ahead to quote the letter dated 19th 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 3rd 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.
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.