[2013] KEELC 48 (KLR)
The court held that since the suit land is under litigation and both parties claim rights to it, the court has a duty to preserve the subject matter pending determination of ownership. The plaintiff's assertion of ownership does not preclude the court from issuing injunctive orders against him. The previous status...
Source-derived case information.
- Citation
- [2013] KEELC 48 (KLR)
- Parties
- Plaintiff: Daudi Kiptugen; Defendant: Commissioner of Lands; Defendant: 4th Defendant; Defendant: 1st, 2nd, 3rd & 5th Defendants
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 787 of 2012
- Procedural Posture
- Interlocutory Application / Ruling on Application for Injunction Pending Hearing
- Outcome
- Application partially allowed; preservation orders granted.
- Legal Topics
- Injunctive Relief, Status Quo Orders, Title Disputes, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daudi Kiptugen
Plaintiff
Commissioner of Lands
Defendant
4th Defendant
Defendant
1st, 2nd, 3rd & 5th Defendants
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Injunction Pending Hearing
Legal Issues
- 1 Whether the plaintiff should be restrained from entering, dealing with, or interfering with the suit land pending determination of the suit.
- 2 Whether the court has jurisdiction to issue an injunction against the plaintiff who claims to be the rightful owner.
- 3 Whether the actions of the plaintiff violated the status quo order previously recorded by consent.
Ratio Decidendi
The court held that since the suit land is under litigation and both parties claim rights to it, the court has a duty to preserve the subject matter pending determination of ownership. The plaintiff's assertion of ownership does not preclude the court from issuing injunctive orders against him. The previous status quo order was potentially violated by the plaintiff's actions, justifying the 4th defendant's application. The court therefore granted limited possession to the plaintiff solely for preservation and security of the land, barred any development or utilization, and issued an inhibition against any dealings with the land until final determination of the suit.
Court Disposition
Application partially allowed; preservation orders granted.
Orders
- The plaintiff shall have charge of the suit land pending hearing and determination of the suit for purposes only of preserving the suit land and keeping it safe and secure.
- The plaintiff shall not develop or utilize the suit land until the final determination of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 787 OF 2012
Formerly HCC 213 of 2011
DAUDI KIPTUGEN............................................................................PLAINTIFF
VS
COMMISSIONER OF LANDS & 4 OTHERS..................................DEFENDANT
RULING
The application before me is an application dated 1st August 2013 filed by the 4th defendant. The applicants are seeking orders to have the plaintiff restrained from trespassing, getting in, remaining in, selling, transferring, dealing, or in any other way interfering with the 4th defendant's possession of the land parcel Eldoret Municipality Block 7/154 which is the suit land. The application is vehemently opposed by the plaintiff who has sworn a replying affidavit.
This suit herein was commenced in 2011. It is the plaintiff's case that he is the rightful owner of the suit land and he has a Certificate of Lease to the said land. His complaint is that the 1st, 2nd, and 5th defendants have issued another lease to the 4th defendant. It is his case that the lease to the 4th defendant was issued illegally.
Upon filing suit, the plaintiff filed an application to have the defendants restrained from dealing with the property. The parties by a consent recorded on 11th July 2012, agreed that the status quo be maintained. In this application, the 4th defendant has averred that the plaintiff entered the suit land and demolished all structures therein and purported to fence it off. It is for that reason that it wants the plaintiff barred from dealing or entering the property.
In his replying affidavit, the plaintiff has averred that he has always been in possession of the property and that he demolished the structures after receiving a directive to do so from the County of Uasin Gishu. He has asserted that he is the rightful owner of the suit land and that by virtue thereof, the law grants him all rights and privileges to use, abuse and waste the said property, and that this court has no jurisdiction to restrain him from using the said land. He has stated that the documents of title relied upon by the 4th defendant are not recognized by law.
I have considered the application, and in my view, I need not make a long ruling on it. This suit is scheduled for hearing on 14 November 2013. The parties had agreed to maintain the status quo pending hearing of the suit. It may very well be that by demolishing the structures in the suit land, the plaintiff went against the status quo, and I think, the 4th defendant was entitled to complain.
The suit land is under litigation, and it is for this court to determine who is its rightful owner. The title of the plaintiff is also in issue in these proceedings. The plaintiff cannot be heard to say that this court cannot issue an order of injunction against him because he believes that he is the rightful owner of the suit land. This court can issue order of injunctions and the plaintiff must obey such orders of injunction irrespective of his views about the case of the defendant. The plaintiff must understand that the suit land is under litigation. This court has a duty to issue interim orders to preserve the subject matter of litigation.
For the circumstances of this litigation, and so as to resolve this application, I issue the following orders :-
(a) The plaintiff shall have charge of the suit land pending hearing and determination of this suit for purposes only of preserving the suit land and keeping the suit land safe and secure.
(b) The plaintiff shall not develop or utilize the suit land until the final determination of this suit.
(c) No party should sell or in any other way deal with the suit land and I hereby issue an order of inhibition, inhibiting the entry of any disposition on the register of the suit land.
The costs of this application shall be costs in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 3RD DAY OF OCTOBER 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Mr. J.K. Korir present for the Plaintiff
Mr. P.K. Komen present for the 4th defendant
N/A for state Law office for the 1st, 2nd, 3rd & 5th defendants