Badawi Muhudhari Mohamed v Maimuna Ali Athman [2017] KEELC 3675 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 169 OF 2016

BADAWI MUHUDHARI MOHAMED..........................PLAINTIFF

=VERSUS=

MAIMUNA ALI ATHMAN.........................................DEFENDANT

R U L I N G

1. What is before me is the Application dated 25th January, 2016 in which the Plaintiff is seeking for the following orders:

(a) THAT a temporary injunction order be issued restraining the Respondent either by herself or their agents, relatives or servants from staying in the house or selling and/or in any other manner whatsoever interfering with the premise/house being unregistered plot situated at Bajuri/Taifa in Lamu County pending the interparty hearing of this Application.

(b) THAT the Respondents act are unlawful, illegal against Islamic Law and might raise to criminal charges as he has no right of benefit and allowed to stay in the house bearing in mind that she is not a wife.

(c)  THAT, the costs of this application be met by the Respondent.

2. The Application is premised on the ground that the Plaintiff is the purchaser of the unregistered plot situate at Bajuri /Taifa in Lamu County (the suit property); that he purchased the suit property from the late Salim Bayusuf in the year 1994 and that the Plaintiff never executed any contract with the Respondent or any other person.

3. The Applicant deponed that the Respondent is using the house on the suit property by claiming that she is the owner; that the Respondent has no rights of ownership over the said land and that the orders being sought should be granted.

4. Althought the Defendant filed a Defence together with the witness statements, she did not file a Replying Affidavit or Grounds of Opposition in response to the Plaintiff's Application.  The said Application is therefore unopposed.

5. The Plaintiff's advocate filed brief submissions which I have considered.

6. The evidence before the court shows that it is the Plaintiff who purchased the suit premises from Salim Baysuf after securing a loan from KCB.

7. In the absence of evidence to show the Defendant's proprietary interest in the suit premises, I find and hold that the Plaintiff has established a prima facie case with chances of success.

8. For those reasons, I allow the Application dated 25th June, 2016 in terms of prayer number (a) and (c).

Dated, signed and delivered in Malindi this  3rdday of February,  2017.

O. A. Angote

Judge