[2014] KEHC 2766 (KLR)
The court found that the plaintiffs failed to demonstrate any imminent risk of irreparable harm, as there was no evidence that their houses had been demolished or that the defendants intended to do so. The family meeting minutes indicated that the land could not be subdivided into nine equal parts and that one son...
Source-derived case information.
- Citation
- [2014] KEHC 2766 (KLR)
- Parties
- Plaintiff: Benson Kwendo Abulwa; Plaintiff: Priscah Anupi Abulwa; Plaintiff: Raymond Abulwa; Plaintiff: Grace Nyandiwa Orado; Plaintiff: Dorice Okeyo; Plaintiff: Mary Abulwa; Plaintiff: Nellia Abulwa; Plaintiff: Pauline Abulwa; Defendant: Samuel Abulwa; Defendant: Nangame Abulwa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 133 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- SJ Chitembwe
- Legal Topics
- Injunctive Relief, Family Land Disputes, Trusts in Land, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Kwendo Abulwa
Plaintiff
Priscah Anupi Abulwa
Plaintiff
Raymond Abulwa
Plaintiff
Grace Nyandiwa Orado
Plaintiff
Dorice Okeyo
Plaintiff
Mary Abulwa
Plaintiff
Nellia Abulwa
Plaintiff
Pauline Abulwa
Plaintiff
Samuel Abulwa
Defendant
Nangame Abulwa
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an injunction restraining the defendants from dealing with plot number E.BNYORE/IBOONA/58 pending determination of the suit.
- 2 Whether preservatory orders should be issued against the Land Registrar to prevent further entries on the suit land.
- 3 Whether the plaintiffs are at risk of being disinherited or having their houses demolished.
Ratio Decidendi
The court found that the plaintiffs failed to demonstrate any imminent risk of irreparable harm, as there was no evidence that their houses had been demolished or that the defendants intended to do so. The family meeting minutes indicated that the land could not be subdivided into nine equal parts and that one son would hold the land in trust for the family, an arrangement that would not disinherit the plaintiffs. The court concluded that the application for injunction and preservatory orders was premature and lacked merit, as the plaintiffs' fears were not substantiated by evidence.
Court Disposition
application dismissed
Orders
- The application dated 25/4/2014 is dismissed with no orders as to costs.
- The matter to be listed before the Land and Environment Court for further directions.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
LAND & ENVIRONMENT CASE NO: 133 OF 2014
BENSON KWENDO ABULWA
PRISCAH ANUPI ABULWA
RAYMOND ABULWA
GRACE NYANDIWA ORADO
DORICE OKEYO ..............................PLAINTIFFS
MARY ABULWA
NELLIA ABULWA
PAULINE ABULWA
VERSUS
SAMUEL ABULWA
NANGAME ABULWA ............................DEFENDANTS
R U L I N G
The plaintiffs herein are the sons of the 1st defendant. The 2nd defendant is their brother. By their application dated 25/4/2014 the applicants are seeking an order of injunction stopping the defendants from dealing with plot number E.BNYORE/IBOONA/58 pending the determination of this matter. They also seek an order that preservatory orders be issued directing the Land Registrar from making any further entries on the suit land.
The application is supported by the affidavit of the 1st applicant. The two defendants filed a joint affidavit on 4/6/2014.
The applicants contend that their father is polygamous and left their homestead in 1985. They have developed the suit land but the 1st defendant intends to transfer the land to the 2nd defendant. The second defendant has started fencing the land and has denied them the right of way and they cannot access their homes.
The defendants contend that the 1st defendant sub-divided his land among two of his sons who are the 2nd defendants and the 1st plaintiff. The 1st plaintiff was given land in Lugari. The 1st defendant maintains that he does not intend to discriminate among his children. They also maintain that there is no intention to demolish any of the plaintiff’s houses.
The dispute involves a father and his sons. The father is alive and the registered owner. Since there is no evidence that the plaintiff’s houses have been demolished and the defendants admit that they do not intend to demolish any of the houses, I do find that the current application is premature. I have seen the minutes of the family meeting held on 28/12/2011 it is indicated that the land cannot be sub-divided into nine (9) equal parts. One of the sons was to be registered to hold in trust for the entire family. I do find that such an arrangement will not disinherit the plaintiffs.
The minutes also indicate that all the houses on the land shall remain in their current positions.
I do find that there is no merit in the application dated 25/4/2012 and the same is hereby dismissed with no orders as to costs. The matter to be listed before the land and Environment court for further directions.
Dated, delivered and signed at Kakamega this 16th day of September 2014.
SAID J. CHITEMBWE
JUDGE