[2017] KEELC 1582 (KLR)
The court found that the plaintiff had demonstrated a meritorious case for the grant of an inhibition order at the ex-parte stage. The plaintiff established that he had been in occupation of the suit land for a significant period and that there was a real threat of eviction and sale by the defendants, which could...
Source-derived case information.
- Citation
- [2017] KEELC 1582 (KLR)
- Parties
- Plaintiff: Canisio Micheni Thambo; Defendant: Domisiano Murungi Thambo; Defendant: Genesio Mwenda Murungi; Defendant: Doris Wanja Murungi; Defendant: Nancy Kaari Murungi; Defendant: Pamela Gakii Murungi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 209 of 2017
- Procedural Posture
- Miscellaneous Application / Ex Parte Interlocutory Application for Inhibition Order
- Outcome
- interlocutory inhibition order granted ex-parte
- Judges
- FM Njoroge
- Legal Topics
- Inhibition Orders, Trusts in Land, Eviction, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Canisio Micheni Thambo
Plaintiff
Domisiano Murungi Thambo
Defendant
Genesio Mwenda Murungi
Defendant
Doris Wanja Murungi
Defendant
Nancy Kaari Murungi
Defendant
Pamela Gakii Murungi
Defendant
Procedural Posture
Miscellaneous Application / Ex Parte Interlocutory Application for Inhibition Order
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of an inhibition order restraining dealings in land parcel MWIMBI/CENTRAL MAGUTUNI/227 pending hearing and determination of the suit.
- 2 Whether there is a risk of irreparable harm to the plaintiff if the inhibition order is not granted.
- 3 Whether the balance of convenience favours the preservation of the suit property.
Ratio Decidendi
The court found that the plaintiff had demonstrated a meritorious case for the grant of an inhibition order at the ex-parte stage. The plaintiff established that he had been in occupation of the suit land for a significant period and that there was a real threat of eviction and sale by the defendants, which could render the suit nugatory. The court was satisfied that the risk of irreparable harm and the balance of convenience justified the preservation of the suit property through an inhibition order pending the hearing and determination of the application inter partes. Accordingly, the court granted prayer 2 of the application, issuing an inhibition order restraining any dealings in land...
Court Disposition
interlocutory inhibition order granted ex-parte
Orders
- An order of inhibition is issued restraining any kind of dealings in land parcel MWIMBI/CENTRAL MAGUTUNI/227 pending the hearing of this application.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO 209 OF 2017
CANISIO MICHENI THAMBO………………...…..PLAINTIFF
VERSUS
DOMISIANO MURUNGI THAMBO………1ST DEFENDANT
GENESIO MWENDA MURUNGI………...2ND DEFENDANT
DORIS WANJA MURUNGI…………….…3RD DEFENDANT
NANCY KAARI MURUNGI………………..4TH DEFENDANT
PAMELA GAKII MURUNGI………………..5TH DEFENDANT
RULING
1. This application is dated 9th October, 2017 and seeks orders:
1. That this application be certified as urgent
2. That the honourable court be pleased to issue order of inhibition restraining any kind of dealings in land parcel MWIMBI/CENTRAL MAGUTUNI/227 pending the hearing of this application.
3. That the honourable court be pleased to issue order of inhibition restraining any kind of dealings in land parcel MWIMBI/CENTRAL MAGUTUNI/227 pending the hearing and determination of this suit.
4. That cost of this application be provided for.
2. The application has the following grounds:
1. That the defendants are threatening to evict the plaintiff and sell the suit land.
2. That the plaintiff children as well as the defendants live on the said parcel.
3. That if the plaintiff is evicted from the suit land he has been in possession and occupation for all his life he stands to be rendered destitute and suffer great loss and damage.
4. That the defendants would not be prejudiced by the said order.
5. That it is only just and fair that this parcel be protected.
3. The application is buttressed by the affidavit of the plaintiff, CANISIO MICHENI THAMBO and which affidavit states as follows:
1. That I am the plaintiff/applicant herein well versed with the fact of this matter and therefore competent to make and swear this affidavit.
2. That land parcel MWIMBI/CENTRAL MAGUTUNI/227 was bequeathed to the 1st defendant/respondent by our late father to hold in trust for me in believe that he would transfer half share of it when he grew of age.
3. That 1st respondent is my elder brother and we have been living harmoniously on the suit parcel for over 30 years.
4. That in the year 2016 I started demanding my share of the suit parcel from the 1st defendant by asking him to subdivide the same.
5. That I made a complaint to members of the clan that is KITHAKI CLAN who held a meeting and demanded that the 1st defendant to transfer half share of the suit parcel tome (Annexed and marked PK 1 is a letter from Chairman KITHAKA CLAN).
6. That after intense pressure from the clan members the 1st defendant secretly transferred LR NO. MWIMBI/CENTRAL MAGUTUNI/227 to his children the 2nd to 5th defendant/respondents herein and told me that he has no land to transfer tome (Annexed and marked PK2 is a copy of green card).
7. That the 1st defendants children are now seeking to evict me and my children claiming to be the registered owners of land with an aim of disposing off the said parcel.
8. That if am evicted from the said parcel I will end landless hence the need for courts intervention.
9. That it is only fair, just and equitable that it is honourable court do allow this application for the purpose of preserving the suit land.
10. That what is deponed to herein is true to the best of my knowledge, information and belief.
4. The certificate of urgency tells the court that the defendants are threatening to sell land parcel NO. MWIMBI/CENTRAL MAGUTUNI/227 and that unless they are stopped from doing so by an order of inhibition, this suit will be rendered nugatory.
5. I find that prayer 2 in the application is meritorious at this ex-parte stage.
6. In the circumstances, prayer 2 is granted.
7. Costs shall be in the cause.
8. The application will be heard interpartes on 19. 10. 107
9. It is so ordered.
Delivered in open court at Chuka this 11th day of October, 2017
in the presence of:
CA: Ndegwa
Igweta for the applicant
P.M. NJOROGE
JUDGE