[2017] KEELC 3040 (KLR)
The court found that the plaintiffs had established sufficient grounds for the grant of an order of inhibition to preserve the suit land pending the hearing and determination of the suit, given the admitted double sale and the risk of further dealings. However, the court declined to grant a temporary injunction...
Source-derived case information.
- Citation
- [2017] KEELC 3040 (KLR)
- Parties
- Plaintiff: Charles Mwendwa Ndiga; Plaintiff: Abishag Kina Mwendwa; Defendant: Kajogo Kathenya; Defendant: Jonathan Kiambi Muketha; Defendant: Kithaka wa Mberia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 193 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Injunction
- Outcome
- Order of inhibition granted; application for temporary injunction declined; directions for pre-trial conference issued.
- Legal Topics
- Inhibition Orders, Temporary Injunctions, Fraudulent Transfer of Land, Possession and Occupation, Bona Fide Purchaser, Registration of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mwendwa Ndiga
Plaintiff
Abishag Kina Mwendwa
Plaintiff
Kajogo Kathenya
Defendant
Jonathan Kiambi Muketha
Defendant
Kithaka wa Mberia
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Injunction
Legal Issues
- 1 Whether an order of inhibition should issue to prevent dealings with the suit land pending determination of the suit.
- 2 Whether a temporary injunction should issue to restrain the defendants from interfering with the plaintiffs' possession and occupation of the suit land.
- 3 Whether the plaintiffs have established a prima facie case for the grant of interlocutory relief.
Ratio Decidendi
The court found that the plaintiffs had established sufficient grounds for the grant of an order of inhibition to preserve the suit land pending the hearing and determination of the suit, given the admitted double sale and the risk of further dealings. However, the court declined to grant a temporary injunction restraining the registered owners (2nd and 3rd defendants) from accessing the land, reasoning that it would be inappropriate to restrain registered proprietors at this interlocutory stage without hearing their side. The court emphasized the need for the plaintiffs to serve the suit on the 2nd and 3rd defendants so that the matter could proceed on its merits, and directed parties to...
Court Disposition
Order of inhibition granted; application for temporary injunction declined; directions for pre-trial conference issued.
Orders
- An order of inhibition is issued inhibiting any dealings with land parcel No. MERU SOUTH/KATHWANA/985 pending hearing and determination of the suit.
- Application for temporary injunction restraining the defendants from interfering with the plaintiffs' possession is declined.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO 193 OF 2017
FORMERLY MERU ELC CASE NO.261OF 2016
CHARLES MWENDWA NDIGA.....................................1ST PLAINTIFF
ABISHAG KINA MWENDWA........................................2ND PLAINTIFF
VERSUS
KAJOGO KATHENYA..................................................1ST DEFENDANT
JONATHAN KIAMBI MUKETHA...............................2ND DEFENDANT
KITHAKA WA MBERIA...............................................3RD DEFENDANT
RULING
1. This application seeks orders:
1. That this application be certified urgent and service be dispensed with in the first instance.
2. That an order of inhibition do issue inhibiting any dealings with land parcel No. MERU SOUTH/KATHWANA/985 pending inter-partes hearing of the application and subsequently pending the hearing and determination of this suit.
3. That an order of temporary injunction do issue restraining the Defendants/Respondents by themselves, their agents or servants from howsoever interfering with the Plaintiffs’ quiet user, possession and occupation of 2 Acres on land parcel No. MERU SOUTH/KATHWANA/985 pending inter-partes hearing of the application and subsequently pending the hearing and determination of this suit.
4. That costs be provided for.
2. It is supported by the affidavit of ABISHAG KINA MWENDA and has the following grounds:
1. That the Plaintiff lawfully bought the suit land from the 1st Defendant and paid the full consideration price.
2. That the 1st Defendant fraudulently and with the intention of defeating the Plaintiffs’ claim caused the suit land to be registered in the name of the 2nd and 3rd Defendants.
3. That the 2nd and 3rd Defendants are not bonafide purchasers for value without notice.
4. That the 2nd and 3rd Defendants are now making attempts to dispossess the Plaintiffs the suit land.
5. That the Plaintiffs have been in possession and user of the suit land since the year 2007 when they purchased the same.
3. On 15. 3.2017, Mr. Kariuki told the court that he was unable to trace the 2nd and 3rd defendants.
4. The 1st defendant told the court that he is the one who sold the suit land to the 1st defendant and then later on sold the same land to the 2nd and 3rd defendants. He told the court that the 2nd and 3rd defendants, when they gave him money knew that the land had already been sold to the 1st and 2nd plaintiffs. He did not oppose this application.
5. In the interests of Justice, I find it necessary to confirm prayer 2 in the application. Prayer 3 is not granted as this court finds it difficult to restrain registered owners of land from accessing their land.
6. The plaintiffs should endeavour to serve the suit against the 2nd and 3rd defendants so that directions to the parties to comply with order 11, CPR can be given. This will allow the suit to be heard on its merits.
7. Pre-trial conference and directions on 12. 7.2017.
8. It is so ordered.
Delivered in open court at Chuka this 15th day of March, 2017 in the presence of:
CA: Ndegwa
Manasses Kariuki for the plaintiff
Kajogo Kathenya – 1st defendant
P. M. NJOROGE,
JUDGE.