[2017] KEELC 1732 (KLR)
The court found that the plaintiffs were identified by the Land Adjudication and Settlement Office as the initial owners of the suit land. The 1st defendant failed to provide any documentary evidence, such as a sale agreement or proof of payment, to support his claim of ownership. In the absence of such evidence and...
Source-derived case information.
- Citation
- [2017] KEELC 1732 (KLR)
- Parties
- Plaintiff: Christopher Ndolo Mbuta; Plaintiff: Annah Ndolo Mbuta; Defendant: Jackson Mutua Kavila; Defendant: Reuben Mbuta Ndolo; Defendant: Esther Wanza Mbuta (Administrator of the Estate of Alice Ndunge); Defendant: Land Adjudication and Settlement Office-Makueni County; Defendant: The County Land Registrar, Makueni
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 191 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed. Interlocutory injunction granted.
- Judges
- OA Angote
- Legal Topics
- Ownership Disputes, Land Registration, Fraudulent Transfer, Injunctive Relief
- 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
Christopher Ndolo Mbuta
Plaintiff
Annah Ndolo Mbuta
Plaintiff
Jackson Mutua Kavila
Defendant
Reuben Mbuta Ndolo
Defendant
Esther Wanza Mbuta (Administrator of the Estate of Alice Ndunge)
Defendant
Land Adjudication and Settlement Office-Makueni County
Defendant
The County Land Registrar, Makueni
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of an interlocutory injunction restraining the defendants from dealing with the suit properties pending determination of the suit.
- 2 Whether there is evidence of fraudulent or unlawful transfer of the suit properties by the defendants.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiffs were identified by the Land Adjudication and Settlement Office as the initial owners of the suit land. The 1st defendant failed to provide any documentary evidence, such as a sale agreement or proof of payment, to support his claim of ownership. In the absence of such evidence and given the plaintiffs' registration as owners, the plaintiffs established a prima facie case with a probability of success. The court therefore granted the interlocutory injunction to restrain the defendants from dealing with the suit properties pending the determination of the main suit.
Court Disposition
Application allowed. Interlocutory injunction granted.
Orders
- An injunction is granted restraining the 1st defendant, with the assistance of the 2nd and 3rd defendants, whether by himself, his agents and/or his servants, from dealing, interfering, alienating, wasting, damaging or otherwise disposing of Land Parcel No. 912, 1160, 1902 and 2916 located within Mang’elete...
- Any illegal and unlawful transaction perpetrated by the 1st defendant with the assistance of the 2nd, 3rd, 4th and 5th defendants in respect of Land Parcel No. 912, 1160, 1902 and 2916 is stayed pending hearing and determination of this suit.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 191 OF 2016
CHRISTOPHER NDOLO MBUTA ...........................................................................................1ST PLAINTIFF
ANNAH NDOLO MBUTA .......................................................................................................2ND PLAINTIFF
VERSUS
JACKSON MUTUA KAVILA....................................................................................................... DEFENDANT
REUBEN MBUTA NDOLO......................................................................................................2ND DEFENDANT
ESTHER WANZA MBUTA(ADMINISTRATOR OF THE ESTATE OFALICE NDUNGE)......3RD DEFENDANT
LAND ADJUDICATION AND SETTLEMENT OFFICE-MAKUENI COUNTY ...........................4TH DEFENDANT
THE COUNTY LAND REGISTRAR, MAKUENI .......................................................................5TH DEFENDANT
RULING
1. In the Notice of Motion dated 11th April, 2016, the Plaintiff is seeking for the following orders:
a. That court be pleased to grant an injunction restraining the 1st Defendant with the assistance of the 2nd and 3rd Defendants whether by himself, his agents and/or his servants from dealing, interfering, alienating, wasting, damaging or otherwise disposing of all those parcels of land known as Land Parcel No. 912, 1160, 1902 and 2916 located within Mang’elete Settlement Scheme, Kibwezi District within Makueni County pending hearing and determination of this suit.
b. That any illegal and unlawful transaction perpetrated by the 1st Defendant with the assistance of the 2nd, 3rd, 4th and 5th Defendant in all those parcels of land known as Land Parcel No. 912, 1160, 1902 and 2916 located within Mang’elete Settlement Scheme, Kibwezi District within Makueni County be stayed pending the hearing and determination of this suit.
c. This Honourable Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.
d. The Defendants bear the costs of this Application.
2. The Application is premised on the grounds that the 1st Plaintiff is the legal owner of parcel number 912 and 1160; that the 2nd Plaintiff is the legal owner of parcel number 1902 and 2916 which she co-owned with Alice Ndunge Ndolo Mbuta (deceased)and that they have never sold the suit land to the 1st Defendant or at all.
3. The 1st Plaintiff deponed that from the Register of the 4th and 5th Defendants, parcel numbers 912 and 1160 were owned by him and that any alleged transactions in respect to the two parcels of land are fraudulent, null and void.
4. The 2nd Plaintiff deponed that she has never sold parcels numbers 1902 and 2916 to the 2nd Defendant and the 3rd Defendant; that from the register of the 4th and 5th Defendants, parcel numbers 1902 and 2916 were owned by her and the late Alice Ndunge Mbuta in equal shares and that the alleged transaction in respect to the two parcels of land are fraudulent.
5. In response to the Application, the 1st Defendant deponed that the suit properties are his and that he has exclusively developed the suit parcels of land.
6. Both the Plaintiffs’ and the Defendants’ advocates filed brief submissions which I have considered.
7. According to the letter dated 17th August, 2011 by the District Land Adjudication Settlement Officer, Kibwezi, the suit properties are registered in favour of the 1st Defendant.
8. The Plaintiffs are claiming that the suit properties were originally registered in their favour, together with their other siblings, the 2nd and 3rd Respondents.
9. From the handwritten record of the Demarcation officer, parcels of land numbers 912 and 1160 were registered in the name of the 1st Plaintiff while parcels numbers 1902 and 2916 were registered in the name of Ndunge Mbuta, the 2nd Plaintiff and the 2nd Defendant.
10. Although the 1st Defendant has deponed that he purchased the said parcels of land, he has not annexed any agreement to that effect.
11. The 1st Defendant has also not stated the amount of money he paid for the suit land, if at all, and the mode of the said payment.
12. Considering that the Plaintiffs were the ones who were identified by the Land Adjudicating and Settlement Office to have been the initial owners of the suit land, and in the absence of documentary evidence to show how the 1st Defendant acquired the same, I find that the Plaintiffs have established a prima facie case with chances of success.
13. In the circumstances, I allow the Application dated 11th April, 2016 in terms of prayers numbers 4 and 8.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.
O.A. ANGOTE
JUDGE