[2004] KEHC 749 (KLR)
The court found that although the applicant is the registered owner of the suit land, there are serious allegations of fraud in the subdivision and registration process, particularly as one of the original co-owners was deceased at the time of subdivision and the applicant was not the administrator of the estate....
Source-derived case information.
- Citation
- [2004] KEHC 749 (KLR)
- Parties
- Plaintiff: Benson Odienya Nyangoko; Defendant: Moses Shivachi Indeche; Defendant: Andrew Sakwa Sakayo; Defendant: Joshia Munyika Rusana; Defendant: Janet Ayuka
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 42 of 2003
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- application dismissed with costs
- Judges
- K Bauni
- Legal Topics
- Temporary Injunctions, Land Ownership Disputes, Fraudulent Registration, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Odienya Nyangoko
Plaintiff
Moses Shivachi Indeche
Defendant
Andrew Sakwa Sakayo
Defendant
Joshia Munyika Rusana
Defendant
Janet Ayuka
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of a temporary injunction restraining the respondents from trespassing on land parcel No. SUNA WEST/WIGA/1779 pending the hearing and determination of the suit.
- 2 Whether the respondents' occupation of the suit land constitutes trespass or is justified by prior occupation and alleged fraudulent subdivision by the applicant.
Ratio Decidendi
The court found that although the applicant is the registered owner of the suit land, there are serious allegations of fraud in the subdivision and registration process, particularly as one of the original co-owners was deceased at the time of subdivision and the applicant was not the administrator of the estate. The respondents have demonstrated long-term occupation and development of the land, and their presence cannot be characterized as mere trespass. Granting a temporary injunction would effectively amount to evicting the respondents before the substantive issues are determined at trial. The balance of convenience does not favour the applicant, and the application for injunction is...
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL CASE NO.42 OF 2003
BENSON ODIENYA NYANGOKO …………………………………… PLAINTIFF
VERSUS
1. MOSES SHIVACHI INDECHE
2. ANDREW SAKWA SAKAYO
3. JOSHIA MUNYIKA RUSANA
4. JANET AYUKA ………………………… DEFENDANTS
RULING
The applicant seeks court to issue a temporary injunction against the four respondents restraining them from trespassing upon land parcel No.SUNA WEST/WIGA/1779 pending the hearing and determination of this suit. He submitted that he is the registered owner of the land in question and he lives there. The respondents however have trespassed into the said land and are illegally making bricks tilling and committing acts of waste. He said he has a prima facie case against them.
The Respondents opposed the application. It was deponed and submitted that parcel NO.WEST SUNA/WIGA/1779 was a creation after subdivision of land NO.WEST SUNA/WIGA/8. The applicant was registered as owner of parcel No.8 with AROKO MUNYIKA and the late RUSANA MUNYIKA who was the father of the 3rd Respondent. Unknown to the others the applicant caused the land to be sub divided into 3 portions and one portion registered in his name the other in the name of Rusana Munyika and the other in the name of Aroka Munyika. He did this fraudulent because by then Rusana was already dead and the applicant was not the administrator of his Estate. The respondent stated that they have been living in the land for many years and have done extensive developments. Applicant is only entitled to 12 acres and they occupy the rest.
I have carefully considered the application. There is no dispute that as of now the applicant is the registered owner of land No.SUNA WEST/WIGA/1779 the suit land. He has annexed a copy of Title deed (annexture “BON2”) and a copy of Search Certificate –annexture “B.ON1. ” It shows the land was registered in his name on 12/7/02. The search certificate shows that this was a portion of land Plot No.8 just as deponed by the respondent. Respondents have annexed a copy of search certificate of plot No.8 just as deponed by the respondents have annexed a copy of search certificate of Plot No.8 which shows the registered owner were RUSANA MUNYIKA; AROKO MUNYIKA, and the applicant BENSON ONDINYA NYANGOKO.
Respondent submitted that the sub division by the applicant was illegal and done fraudulently. This is even pleaded in the defence and counter claim. Without wishing to pre-empt the suit this point need to be fully canvassed. The 3rd respondent has taken out letters of administration to the Estate of the late RUSINA one of those registered as owners of Plot No.8. A copy of the grant is annexed as to the affidavit and it shows that Rusana Munyika died on 16th Feb. 1989. One therefore wonders how the applicant was able to sub divide the land in the year 2002 and have one portion registered in the name of RUSANA who had died 13 years before. This is a point to be addressed during the full hearing. However the whole scenario shows that the respondent did not just trespass into the suit land.
They could have been living there even before the land was registered in the name of the applicant. To grant an injunction against them is tantamount to ordering they be evicted. This should wait until the suit is heard and finalized.
In the circumstances the application is dismissed with costs.
Dated at Kisii this 24th November 2004
KABURU BAUNI
JUDGE
24/11/04
Mr. Soire for Respondent.
Appellant in person.
KABURU BAUNI
JUDGE