Kimitei v Kibet alias Margaret Jepkosgei Kibet & another [2023] KEELC 18695 (KLR)

Kimitei v Kibet alias Margaret Jepkosgei Kibet & another (Environment & Land Case E027 of 2022) [2023] KEELC 18695 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18695 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Case E027 of 2022

EO Obaga, J

July 6, 2023

Between

Ambrose Kimambei Kimitei

Plaintiff

and

Jepkosgei Kibet alias Margaret Jepkosgei Kibet

1st Defendant

Rebecca Kibowen

2nd Defendant

Ruling

1. This is a ruling in respect of a notice of motion dated 20/2/2023 in which the 1st Defendant/Applicant seeks the following reliefs:-a)Spentb)Spentc)That there be temporary orders for injunction restraining the Plaintiff/Respondent by himself, his servants and/or agents from trespassing, entering, ploughing, damaging, wasting, alienating or transferring or in any other way interfering with the plaintiff’s case, possession and ownership of part of that parcel known as Uasin Gishu/Illula Settlement scheme/879 (hereinafter referred as the “suit property” pending the hearing and determination of the main suit.

2. The Applicant and the Plaintiff/Respondent were once married but they have since divorced. The Applicant is the registered owner of LR. No. Uasin Gishu/Illula Settlement Scheme/879 (suit property). The Applicant contends that she purchased the suit property using her own money and that she has been in possession since 2007 until on or about 5/1/2023 when the Respondent broke down the gate to the suit property, chased away the Applicant’s workers and started preparing the suit property for planting.

3. It is the Applicant’s contention that as the registered owner of the suit property, she is entitled to quiet use of the same and that the interference by the Respondent will cause her irreparable loss.

4. The Respondent opposed the Applicant’s application based on a replying affidavit sworn on 20/3/2023. The Respondent contends that he has been in possession of the suit property since its purchase in 2007 and that he has since put up a perimeter fence, done drainage, put up a granary and servant quarters.

5. The Respondent states that neither the Applicant nor the 2nd Defendant who is her sister have ever set foot on the suit property and that the 2nd Defendant has previously attempted to evict his workers but was advised against doing so without a court order.

6. I have carefully considered the Applicant’s application as well as the opposition to the same by the Respondent. There is no doubt that the suit property is registered in the Applicant’s name. the Respondent is claiming that he is entitled to the suit property by virtue of his contribution. The question to be answered is whether an injunction can issue in the circumstances.

7. This suit was brought by the Respondent. The Applicant has not raised any counter claim seeking for any reliefs. The law is clear that an injunction must be based on a suit. One cannot move the court for an injunction when there is no suit the basis of which the injunction can be sought. The mere fact that the Applicant has title to the suit property is no justification for applying for injunctive reliefs.

8. The Applicant has not come out clearly to show that she is the one who has been in possession. It is also doubtful that the Respondent could have been in possession of a property which was purchased soon after divorce. In the circumstances an injunction will not issue. The best the parties can do is to have the dispute determined expeditiously so that the truth can be known after evidence is adduced by all parties. I proceed to dismiss the Applicant’s application with costs to the Respondent.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 6TH DAY OF JULY, 2023. E. O. OBAGAJUDGEIn the virtual absence of parties who were aware of date of delivery of ruling.Court Assistant –LabanE. O. OBAGAJUDGE