[2014] KEHC 2857 (KLR)
The court found that both parties are registered owners of distinct parcels of land and that the plaintiff failed to establish a prima facie case with a probability of success to warrant the grant of an injunction. The court held that the dispute is essentially a boundary issue, which can be addressed by the Land...
Source-derived case information.
- Citation
- [2014] KEHC 2857 (KLR)
- Parties
- Plaintiff: Charles Lugondo Ngalwa; Defendant: Mark Imbalu Musikhu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- SJ Chitembwe
- Legal Topics
- Boundary Disputes, Injunctive Relief, Land Registration, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Lugondo Ngalwa
Plaintiff
Mark Imbalu Musikhu
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from sub-dividing plots KAKAMEGA/CHEPTULU/85 and 87.
- 2 Whether the Vihiga Land Registrar should be restrained from issuing title deeds for the sub-divisions.
- 3 Whether the plaintiff has established a prima facie case with a probability of success.
Ratio Decidendi
The court found that both parties are registered owners of distinct parcels of land and that the plaintiff failed to establish a prima facie case with a probability of success to warrant the grant of an injunction. The court held that the dispute is essentially a boundary issue, which can be addressed by the Land Registrar or through a private surveyor. The plaintiff did not demonstrate any irreparable harm that would result from the defendant sub-dividing his own property. Consequently, the application for an injunction lacked merit and was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs
Orders
- The application dated 18/2/2014 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
13 paragraphs
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE NO: 39 OF 2008
CHARLES LUGONDO NGALWA.............................................PLAINTIFF
VERSUS
MARK IMBALU MUSIKHU...................................................DEFENDANT
R U L I N G
The application dated 18/2/2014 seeks to restrain the defendant from sub-dividing plot number KAKAMEGA/CHEPTULU/85 and 87 respectively. The applicant also seeks an order retraining the Vihiga Land Registrar from issuing title deeds in respect of the expected sub-divisions. The application is supported by the same date. The defendant filed a replying affidavit sworn on 5th June 2014.
Counsels for both parties relied on their respective pleadings. The pleadings show that the applicant is the registered owner of plot number KAKAMEGA/CHEPTULU/88 while the defendant owns plot number 85 and 87. Parties had a boundary dispute before the Vihiga Land Disputes Tribunal. The Tribunal held that the existing boundary be maintained and this was contrary to the plaintiff’s expectation.
Since each of the parties own different titles, I do find that the court cannot injunct the defendant from dealing with this property. The plaintiff’s claim can be dealt with fully and if it is found that there is need to adjust the property then such an issue can be dealt with at that stage. This is a boundary dispute and the land Registrar can deal with it. The plaintiff cal also engage private surveyor who can show him his boundary.
I do find that there is no prima facie case with a probability of success established by the plaintiff. I do not see any irreparable damage that would befall the plaintiff. I do find that the application lacks merit and the same is dismissed with costs.
Dated, delivered and signed at Kakamega this 16th day of September 2014.
SAID J. CHITEMBWE
JUDGE