[2014] KEELC 255 (KLR)
The court found that neither party held a formal title to the disputed land and that the boundary between the parties had not been fixed. The area chief, with the assistance of village elders, had arbitrated the dispute, visited the site, and established a boundary, which both parties were directed to respect. The...
Source-derived case information.
- Citation
- [2014] KEELC 255 (KLR)
- Parties
- Applicant: Daniel Ngumbao; Defendant: Karisa Kaka; Defendant: Bahati Kaka; Defendant: Hassan Kaka; Defendant: Katana Kaka; Defendant: Harusi Kaka; Defendant: Mganga Kaka; Defendant: Dhahabu Kaka; Defendant: Juma Mwahunga; Defendant: Hawe Sidi Kaka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 215 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- Plaintiff's application for injunction allowed.
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Boundary Determination
- 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
Daniel Ngumbao
Applicant
Karisa Kaka
Defendant
Bahati Kaka
Defendant
Hassan Kaka
Defendant
Katana Kaka
Defendant
Harusi Kaka
Defendant
Mganga Kaka
Defendant
Dhahabu Kaka
Defendant
Juma Mwahunga
Defendant
Hawe Sidi Kaka
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from interfering with his enjoyment of the disputed portion of land.
- 2 Whether the boundary between the parties should be maintained as determined by the area chief and elders pending the hearing and determination of the suit.
Ratio Decidendi
The court found that neither party held a formal title to the disputed land and that the boundary between the parties had not been fixed. The area chief, with the assistance of village elders, had arbitrated the dispute, visited the site, and established a boundary, which both parties were directed to respect. The court held that, in line with Article 159(2)(c) of the Constitution, the traditional dispute resolution outcome should be preserved as the status quo, as the court could not conclusively determine the boundary at this interlocutory stage. Accordingly, the plaintiff's application for an injunction was allowed to maintain the boundary as established by the chief and elders until...
Court Disposition
Plaintiff's application for injunction allowed.
Orders
- An injunction is issued restraining the defendants, their agents, servants, or anyone claiming through them from entering, alienating, or interfering with the plaintiff's enjoyment of his portion of land as determined by the area chief, pending the hearing and determination of the suit.
- The costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
LAND CASE NO. 215 OF 2013
DANIEL NGUMBAO.........................................................................APPLICANT
VERSUS
KARISA KAKA
BAHATI KAKA
HASSAN KAKA
KATANA KAKA
HARUSI KAKA
MGANGA KAKA
DHAHABU KAKA
JUMA MWAHUNGA
HAWE SIDI KAKA................................................................DEFENDANTS
R U L I N G
What is before me in the Plaintiff's Application dated 29th November 2013 seeking for the following orders:
a) Pending the hearing and determination of this suit, an injunction do issue restraining the defendants whether by themselves, their children, servants, employees or agents or any others claiming through them form entering, alienating or in any manner whatsoever interfering with the plaintiff's enjoyment of his portion of land which is part of plot No. 354 MALINDI including erecting any structures thereon or cutting any flora and fauna.
b) The costs of this application be awarded to the plaintiff.
The Application is supported by the Plaintiff's Affidavit in which he has deponed that he is the beneficial owner of the suit property, that the Defendants are his neighbours and that in 11th November 2013, the Defendants invaded a portion of his land measuring 20 acres.
It is the Plaintiff's deposition that the chief of the area heard the dispute between the parties and delivered his Ruling in his favour.
According to the Defendant's, the Plaintiff and their deceased grandfather were friends and neighbours, that their father allowed the Plaintiff to cultivate tobacco on a small portion of their plot and that their grandfather later on stopped the Plaintiff from utilizing the small portion of land.
The Defendants admitted that indeed the Assistant Chief visited the disputed plot and ruled in favour of their father.
The parties advocates filed their respective submissions in which they reiterated their client's cases. I have considered those submissions and have taken the following view:
None of the parties have a title to their respective portions of land. It would appear that the two families have been residing on the land whose beacons have never been fixed.
The Applicant has annexed on his Affidavit the proceedings in respect of the disputed land that were conducted by the Chief in the presence of the village elders and the Senior Assistant Chief. There were other 18 people, including the parties herein in attendance.
After visiting the site, the Chief identified the disputes parcel of land an drew a sketch which forms part of the proceedings. The Chief, and the elders, after hearing both sides concluded that the boundary between the two parties is what is represented by a line he marked as AB. The chief directed that the parties should respect the boundary as established by himself and village elders.
The Respondents annexed a report of the Assistant Chief. The said report not dated. The Assistant, without setting out how he resolved the dispute or without a diagram to show where the boundary of the parties should be concluded that the disputed plot belonged to the Defendants.
Article 159 (2) (c) of the Constitution mandates this court to be guided by the principles of alternative forms of dispute resolution including traditional dispute resolution mechanisms. The Chief of the area with which the disputed land falls arbitrated over the dispute with the assistance of village elders. The Chief visited the land and drew a sketch showing where the boundary between the two parties should be. That, in my view, should be the status quo considering that the court cannot establish the boundary at this stage.
In the circumstances, I shall allow the plaintiff's Application dated 29th November, 2013.
Dated and Delivered in Malindi this 31st day of July,2014.
O. A. Angote
Judge