[2010] KEHC 966 (KLR)
The court found that the plaintiff had been in occupation of the suit land for many years, regardless of the current status of the title. The judge determined that it was appropriate to preserve the status quo on the disputed land until the substantive issues could be resolved at trial. The court declined to engage...
Source-derived case information.
- Citation
- [2010] KEHC 966 (KLR)
- Parties
- Plaintiff: Andrew Robi Wambura; Defendant: Mogesi Marwa alias Itaroro; Defendant: Marwa Christopher Itaroro
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 82 of 1996
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- Status quo order granted; suit to be set for hearing on priority basis; no order as to costs.
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Trusts in Land, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Robi Wambura
Plaintiff
Mogesi Marwa alias Itaroro
Defendant
Marwa Christopher Itaroro
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from interfering with the suit property pending determination of the suit.
- 2 Whether the status quo on the disputed land should be maintained until final determination of the case.
Ratio Decidendi
The court found that the plaintiff had been in occupation of the suit land for many years, regardless of the current status of the title. The judge determined that it was appropriate to preserve the status quo on the disputed land until the substantive issues could be resolved at trial. The court declined to engage in a detailed analysis of the parties' arguments at this interlocutory stage, emphasizing the need for an expedited hearing of the main suit. Accordingly, the court ordered that the status quo be maintained and directed the parties to set the matter down for hearing on a priority basis, with no order as to costs.
Court Disposition
Status quo order granted; suit to be set for hearing on priority basis; no order as to costs.
Orders
- Status quo on the disputed land by whatever description it is known to be maintained until the case is heard and determined.
- The suit to be set down for hearing on a priority basis within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT NO. 82 OF 1996
ANDREW ROBI WAMBURA …..………...........…….. PLAINTIFF/APPLICANT
VERSUS
MOGESI MARWA alias ITARORO ……….. 1ST DEFENDANT/RESPONDENT
MARWA CHRISTOPHER ITARORO ……… 2ND DEFENDANT/RESPONDENT
RULING
This is a very old case which for over 14 years has not been heard and determined. It is unfortunate that counsel for the parties have not diligently pursued its finalization.
In the plaint, the plaintiff claimed that in 1998 he purchased a parcel of land known asBugumbe/Mabera/137, (hereinafter referred to as “the suit property”), measuring 3 acres from the share of the 1st defendant and the father of the 2nd defendant who were joint proprietors thereof together with one Waisiku Itaroro. He urged the court to order the defendants to execute a transfer of the suit property in his favour and grant a permanent injunction restraining the defendants from interfering with the suit land in any way. He further sought a declaration that the defendants are holding the suit land in trust for him.
The defendants filed a joint statement of defence and denied the plaintiff’s claim. They alleged
that the plaintiff had unlawfully settled on the suit land and as a result they had filed Civil suit NO. 649 of 1995before the Migori Senior Principal Magistrate’s court to challenge his occupation thereof. They urged the court to dismiss the plaintiff’s suit.
On16th October, 2007, the plaintiff filed an application seeking a temporary injunction to restrain the defendants from interfering with, alienating and/or committing acts of waste of the suit property pending hearing and determination of this suit. In his affidavit in support of the application, the plaintiff stated that he took possession of the suit land immediately after he purchased the same. He is living there together with his entire family and he doesn’t have any other land, he stated. He further averred that on 6th September, 2007, the 1st defendant threatened his wife with a panga while his animals were destroying crops on the suit land.
The defendants filed a replying affidavit and denied that they had encroached onto the suit land. They further alleged that the suit land was no longer in existence as it had been subdivided and several subdivisions created. As a result the title has been closed. They annexed to their affidavit an extract of the register (Green Card). They urged the court to dismiss the plaintiff’s claim.
Having considered the affidavits on record and submissions by counsel, I do not deem it appropriate to go into detailed analysis of the arguments presented before this court. Suffice to say that the plaintiff has been in occupation of the suit land for many years irrespective of whether the title of the same has been closed or not. This dispute ought to be resolved substantively by hearing the case as soon as possible. In the circumstances, I order that the status quo on the disputed land by whatever description it is known be maintained until this case is heard and determined. I further direct that this suit be set down for hearing on priority basis. The parties should proceed to take a hearing date within the next 30 days from the date hereof. I make no orders as to costs.
DATED, SIGNED AND DELIVERED AT KISII THIS 29TH DAY OF JULY, 2010.
D. MUSINGA
JUDGE.
29/7/2010
Before D. Musinga, J
Mobisa – cc
Mr. Oguttu for Mr. Nyagesoa for the Plaintiff
Mr. Nyagwencha for Mr. Abisai for the Respondent
Court: Ruling delivered in open court on 29th July, 2010.
D. MUSINGA
JUDGE.