Mupa Opara Alima v Rama Kombe & County Government of Mombasa [2017] KEELC 2393 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC CASE NO. 268 OF 2016

MUPA OPARA ALIMA………......................PLAINTIFF/APPLICANT

-VERSUS-

RAMA KOMBE…………..………..............….........1ST DEFENDANT

COUNTY GOVERNMENT OF MOMBASA............2ND DEFENDANT

RULING

1. The plaintiff/applicant has moved the Court seeking for an order that:

“Pending hearing and determination of this suit, the 1st defendant, his agents, servants and employees be restrained by way of temporary injunction from trespassing, constructing, selling or in any way dealing with plot No 100 Miritini Settlement Scheme.”

2. The applicant avers that she has lived on this land for more than 20 years.  But at the time of allotment it was given to the 1st defendant.  That the 1st defendant has sold their plot which adjoins the suit plot and is also threatening to sell the suit plot.  The applicant deposed that she has nowhere to go if evicted and urged the Court to grant the order.

3. The application is opposed by both defendants.  The 1st defendant denied the applicant has lived on this plot for over 20 years.  He deposed that the applicant is married to Kaka Tsuma Ndaro their neighbor who was allocated Plot No 84.  He annexed copy of the allotment letter for Kaka Tsuma.  That the suit plot originally belonged to the 1st defendant’s father and the applicant’s complaints to the local adjudication committee were dismissed.  The 1st defendant deposes that he has no intention of selling the suit plot.  He also deposed that the applicant will not suffer any irreparable harm as they have their own plot allocated to her husband.

4. The parties filed written submissions which I have read and considered.  For a party to enjoy injunctive relief, he/she must establish either of the three principles of prima facie case, irreparable harm that cannot be compensated in damages or when in doubt decide in whose favour the balance of convenience tilts.  The applicant herein lives on the suit plot which has allotment letter bearing the name of the 1st defendant.  The 1st defendant has stated on oath that he is not intending to sell the suit plot.  The applicant also included the 2nd defendant in this suit.  At this stage there are no orders she is seeking against the 2nd defendant therefore I will not delve into the submissions made by the applicant as regards the grounds of opposition filed.

5. On the basis that the 1st defendant admitted that the applicant settled on a portion of the suit property because their plot was located in an area that was not developed, an inference is drawn that the applicant settled on the suit plot with their permission.  The applicant has not specified the mode the threats from the 1st defendant have been meted to her.  I am however granting her the orders based on the principle of balance of convenience.  She is in possession so the balance of convenience tilts in her favour to remain in possession pending determination of the suit.  The cost of the application is ordered in the cause.

Dated, signed & delivered at Mombasa this 12th day of JULY 2017

A. OMOLLO

JUDGE