[2018] KEELC 1639 (KLR)
The court found that the plaintiff's long occupation of the suit land was not sufficiently controverted by the defendants. Although the 1st defendant holds title to the property, the court determined that, in the interest of preserving the suit land and pending the trial of issues including alleged fraud, it was...
Source-derived case information.
- Citation
- [2018] KEELC 1639 (KLR)
- Parties
- Plaintiff: Barasa Makhanau; Defendant: Terig Kigen; Defendant: Jairus Juma Wafula
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 29 of 2018
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for temporary injunction granted.
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Adverse Possession, Fraud in Land Allocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barasa Makhanau
Plaintiff
Terig Kigen
Defendant
Jairus Juma Wafula
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from entering, using, or occupying the suit land pending determination of the suit.
- 2 Whether the plaintiff's long occupation of the land outweighs the defendants' registration and alleged compliance with allotment conditions.
- 3 Whether the court should preserve the status quo pending trial of allegations of fraud and ownership.
Ratio Decidendi
The court found that the plaintiff's long occupation of the suit land was not sufficiently controverted by the defendants. Although the 1st defendant holds title to the property, the court determined that, in the interest of preserving the suit land and pending the trial of issues including alleged fraud, it was appropriate to grant the temporary injunction sought by the plaintiff. The court emphasized the need to maintain the status quo and prevent possible injustice before the substantive issues are resolved at trial. Each party was ordered to bear its own costs, and the suit was to be set down for hearing on an urgent basis.
Court Disposition
Application for temporary injunction granted.
Orders
- A temporary injunction is issued restraining the defendants, their agents, and servants from claiming, entering, using, or occupying Maridadi Settlement Scheme Plot No 187 pending hearing and determination of the suit.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT KITALE
ELC CASE NO. 29 OF 2018
BARASA MAKHANU..........................................PLAINTIFF
VERSUS
TERIG KIGEN...........................................1ST DEFENDANT
JAIRUS JUMA WAFULA........................2ND DEFENDANT
R U L I N G
1. The applicant brought an application dated 15/3/2018 seeking the following principal order:
“That pending the hearing and determination of this suit the respondents their agents and servants be restrained by a temporary injunction from claiming entering using or in any other manner occupying land known as Maridadi Settlement Scheme Plot No 187”.
2. The application is supported by grounds on its face and in the affidavit of the plaintiff sworn on the 1st March 2018.
3. The grounds upon which the application is brought are that the applicant has been in occupation of the suit land for 35 years and the respondent has tried to evict the applicant using court orders but in vain, with the ultimate action of the respondent being that now he has obtained registration of the land in his name.
4. In the replying affidavit sworn by the 1st defendant on the 8th April 2018 and filed on the 11th April 2018, the deponent avers that he is the lawful allottee of the land. Having been allotted the same by the Settlement Fund Trustees and that he has complied with all the conditions upon allotment which led to the registration of the suit land in his name and his subsequent sale of the land to the 2nd defendant. He avers that the letter of allotment borne by the plaintiff is not genuine and that the plaintiff is not the owner of the land. He avers that previous litigation regarding the land has not ended in favour of the plaintiff and that he has been repaying the Settlement Fund Trustees loan obtained by him and secured by the land in their favour.
5. In an application of this nature I find that the possession of the land by a defendant requires that the court take precaution so as not to issue a mandatory injunction at an interlocutory stage without any sound basis. However in this case the plaintiff is in possession and he is the one seeking an order of injunction while the 1st defendant already is registered as the proprietor and is alleging fraud in the allotment letter held by the plaintiff.
6. I find that the long duration of the plaintiff’s occupation of the suit land is not sufficiently controverted by the defendant. Despite the fact that the defendant holds a title to the suit property, I find it necessary in this suit for the purpose of preserving the suit land to grant the plaintiff’s application as the matters in issue, including the alleged fraud are tried and determined by this court.
I therefore grant the application dated 15th March, 2018 in this suit and order that each party shall bear its own costs. The suit should also be set down for hearing on an urgent basis.
Dated, signed and delivered at Kitale on this31stday of May, 2018.
MWANGI NJOROGE
JUDGE
31/5/2018
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Lowasikou holding brief for Nyamu for the defendants
N/A for the plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
31/5/2018