[2017] KEELC 658 (KLR)
The court found that the 2nd Plaintiff, as a joint registered owner, had not authorized the 1st Plaintiff to file the suit or swear affidavits on his behalf. This lack of authority rendered the suit and the application fatally defective. Furthermore, the 2nd Plaintiff expressly stated he had no objection to the 1st...
Source-derived case information.
- Citation
- [2017] KEELC 658 (KLR)
- Parties
- Plaintiff: Benard Kata Kituku; Plaintiff: Boniface Muia Kituku; Defendant: Veronica Ndinda Mwema; Defendant: The Hon. Attorney General; Defendant: The County Land Registrar (MKS)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Caution Registration, Joint Ownership, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Kata Kituku
Plaintiff
Boniface Muia Kituku
Plaintiff
Veronica Ndinda Mwema
Defendant
The Hon. Attorney General
Defendant
The County Land Registrar (MKS)
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Plaintiffs have locus standi to institute the suit and application jointly.
- 2 Whether the Plaintiffs have established a prima facie case for grant of injunction against the 1st Defendant.
- 3 Whether the caution registered by the 1st Defendant should be removed.
Ratio Decidendi
The court found that the 2nd Plaintiff, as a joint registered owner, had not authorized the 1st Plaintiff to file the suit or swear affidavits on his behalf. This lack of authority rendered the suit and the application fatally defective. Furthermore, the 2nd Plaintiff expressly stated he had no objection to the 1st Defendant's claim and no interest in the disputed portion, undermining the Plaintiffs' case. As such, the Plaintiffs failed to establish a prima facie case with a probability of success, and the application for injunction and removal of caution could not be sustained. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Plaintiffs' Application dated 19th January, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 3 OF 2016
BENARD KATA KITUKU.............................................1ST PLAINTIFF
BONIFACE MUIA KITUKU........................................2ND PLAINTIFF
VERSUS
VERONICA NDINDA MWEMA...............................1ST DEFENDANT
THE HON. ATTORNEY GENERAL.........................2ND DEFENDANT
THE COUNTY LAND REGISTRAR (MKS)............3RD DEFENDANT
RULING
1. In the Application dated 19th January, 2016, the Plaintiffs are seeking for the following orders:
a. An injunction do issue restraining the 1st Defendant/Respondent whether herself, her agent or servant or howsoever from selling, allotting, alienating or transferring or other dealing in Mavoko Town Block 3/31271 pending the determination of this suit.
b. Removal of a caution registered on the 13th July, 2015 forthwith.
c. All further registration of cautions, restrictions in the ownership, leasing, allotment, user occupation or possession or any kind of right of interest in Mavoko Town Block 3/31271 with the County Land Registrar at Machakos and all registering authorities be prohibited until further orders of this court.
d. Costs be provided for.
2. The Application is based on the ground that a caution was lodged on the property on the 13th July, 2015 by the 1st Defendant claiming purchaser’s interest; that there is no known contract between the Plaintiffs and the 1st Defendant and that the suit land is registered the name of the Plaintiffs.
3. In the Affidavit, the 1st Plaintiff deponed that the property is an inheritance from their parents; that there is no agreement in existence between him and the 1st Defendant and that the manner in which the caution was registered offends the provision of the Land Registration Act.
4. The 1st Plaintiff deponed that he is not aware of any money which was paid to him or the 2nd Plaintiff in respect to the suit land and that the caution of 13th July, 2015 is invalid. The 1st Plaintiff annexed on his Affidavit the Further Affidavit of the 2nd Plaintiff.
5. In his Replying Affidavit, the 2nd Plaintiff denied ever giving the 1st Plaintiff authority to institute the suit on his behalf; that he did not swear the “Further Supporting Affidavit” annexed on the 1st Plaintiff’s Affidavit and that the signature on the said Affidavit is not his.
6. According to the 2nd Plaintiff, the suit land measuring approximately 40 acres was initially owned by their father Kituku Kitavi; that after the demise of their father, he found that the 1st Plaintiff had already caused the sub-division of the said land which he had sold and that he has no interest in the ten (10) acres which the 1st Defendant’s husband bought.
7. On her part, the 1st Defendant deponed that her husband bought ten (10) acres of the suit land; that the Plaintiffs have not produced any Title Deed to show that they are the absolute owners of the suit land and that it is the 1st Plaintiff who sub-divided the suit land into several portions.
8. The Applicant swore a Further Affidavit which I have considered.
9. The 1st Plaintiff, the 2nd Plaintiff and the 1st Defendant’s advocates filed their respective submissions which I have considered.
10. In the Verifying Affidavit in support of the Plaint, the 1st Plaintiff has deponed that he has been authorized to swear the Affidavit on behalf of the 2nd Plaintiff.
11. The 2nd Plaintiff has denied that he authorized the 1st Plaintiff to file the suit, or to swear any Affidavit on his behalf. According to the 2nd Plaintiff, the Affidavit annexed on the Supporting Affidavit was not signed by him.
12. Considering that the suit land is registered in the name of the two Plaintiffs, and having denied that he authorized the 1st Plaintiff to file the suit, I find that the suit and the Application should be struck out on that ground alone.
13. The 2nd Plaintiff has deponed that the 1st Plaintiff had the family land fraudulently sub-divided without his consent; that the 1st Plaintiff has sold several pieces of land and that he has no interest in the suit land which the 1st Respondent’s husband bought.
14. Considering that the suit land is registered in the joint names of the Plaintiffs, and in view of the deposition of the 2nd Plaintiff that he has no objection with the 1st Defendant’s claim, I find that the Plaintiffs have not established a prima facie case with chances of success.
15. For those reasons, I dismiss with costs the Plaintiffs’ Application dated 19th January, 2016.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE