[2021] KEELC 591 (KLR)
The court found that the applicant had demonstrated a legitimate claim to the suit land based on a sale agreement and long-term occupation, thus establishing a prima facie case with a probability of success. The risk of the defendant transferring the land to third parties was real, and the applicant's interest...
Source-derived case information.
- Citation
- [2021] KEELC 591 (KLR)
- Parties
- Plaintiff: Antony Muthuri M’Itwamwari; Defendant: Marko Kiambi Abwithia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E024 of 2021
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- Application allowed with conditions.
- Legal Topics
- Injunctions, Inhibition Orders, Land Ownership Disputes, Sale of Land Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Antony Muthuri M’Itwamwari
Plaintiff
Marko Kiambi Abwithia
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant a temporary injunction over Parcel No. Abothuguchi/Gitie/635.
- 2 Whether the court should issue an inhibition order to preserve the suit property pending hearing and determination of the suit.
- 3 Whether the applicant is entitled to protection of his alleged interest in the land based on the sale agreement and occupation.
Ratio Decidendi
The court found that the applicant had demonstrated a legitimate claim to the suit land based on a sale agreement and long-term occupation, thus establishing a prima facie case with a probability of success. The risk of the defendant transferring the land to third parties was real, and the applicant's interest required protection. The court exercised its discretion to grant temporary injunction and inhibition orders under the Land Registration Act to preserve the subject matter pending hearing, subject to the applicant filing an undertaking as to damages.
Court Disposition
Application allowed with conditions.
Orders
- Temporary injunction and inhibition orders granted over Parcel No. Abothuguchi/Gitie/635 for 12 months.
- Applicant to file an undertaking as to damages of Kshs. 200,000 within 7 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. E024 OF 2021
ANTONY MUTHURI M’ITWAMWARI...................................PLAINTIFF
VERSUS
MARKO KIAMBI ABWITHIA..............................................DEFENDANT
RULING
1. Before the court is an application seeking inhibition and temporary injunction orders over Parcel No. Abothuguchi/Gitie/635 pending hearing of the suit.
2. The application is supported by an affidavit sworn on 15. 10. 2021 by Antony Muthuri M’Itwamwari who states he has been occupying a half acre of the land since 1999 which he has developed extensively through farming activities.
3. It is the plaintiff’s contention the defendant has declined to transfer the portion and is apprehensive he may transfer the entire lands to third parties so as to defeat his claim. Though served the respondent has not put in any replying affidavit.
4. Be that as it may, the claim before the court is through an originating summons dated 1. 10. 2021 attached to which is a sale agreement dated 2. 11. 1999, certificate of official search and a demand letter dated 13. 9.2921 acknowledging the applicant has been in occupation since 1999.
5. Looking at the sale agreement it is clear the applicant has some legitimate claim over suit the land which ought to be protected by the law.
6. In Mrao Ltd. –vs- First American Bank of Kenya Ltd. & 2 Others [2003] eKLR a prima facie case was said to be one in which on the material presented to the court or tribunal, properly directing itself, will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the opposite party.
7. The applicant has in my view demonstrated the right to occupy the suit land and hence established a prima facie case with a probability of success.
8. As regards inhibition, Section 68 of the Land Registration Act 2012 grants the court powers to issue such orders to preserve the subject land pending hearing.
9. In the instant case, the search shows the land is in the name of the defendant. Article 159 (1) (d) of the Constitution enjoins the court to do substantive justice. The fear by the applicant is not far-fetched given the threat of the letter dated 13. 9.2021 alleging he is a mere trespasser.
10. I am satisfied the applicant has good grounds to seek such an order so as to preserve the property in dispute.
11. The application is therefore allowed but the orders shall only subsist for a period of 12 months. The applicant shall file an undertaking as to damages of Kshs. 200,000/= within 7 days from the date hereof. The applicant shall also set down the suit for case conference within 45 days from the date hereof.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 1ST DAY OF DECEMBER, 2021
In presence of:
Mukanguru for plaintiff/applicant
P.M. Manjau for the defendant – absent
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE