[2018] KEELC 1386 (KLR)
The court found that the application was unopposed, and the petitioner had demonstrated sufficient grounds for the grant of temporary injunctive and conservatory orders. The petitioner established a prima facie case by showing that he was recorded as the owner in the adjudication register and that the land was...
Source-derived case information.
- Citation
- [2018] KEELC 1386 (KLR)
- Parties
- Applicant: David Maitai Rimita; Respondent: District Land Adjudication and Settlements Officer – Tigania East & West Districts; Respondent: Director of Land Adjudication; Respondent: Chief Land Registrar; Interested Party: Josphat Muthaura Nkubito
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 6 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Temporary Injunction and Conservatory Orders
- Outcome
- Application for temporary injunction and conservatory orders allowed.
- Legal Topics
- Land Registration, Adjudication Process, Temporary Injunctions, Conservatory Orders
- 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
David Maitai Rimita
Applicant
District Land Adjudication and Settlements Officer – Tigania East & West Districts
Respondent
Director of Land Adjudication
Respondent
Chief Land Registrar
Respondent
Josphat Muthaura Nkubito
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Temporary Injunction and Conservatory Orders
Legal Issues
- 1 Whether the petitioner is entitled to temporary injunctive and conservatory orders restraining dealings with land registration No. URINGU/1248 pending hearing of the petition.
- 2 Whether the petitioner has demonstrated a prima facie case with a likelihood of success to warrant the orders sought.
- 3 Whether the respondents or interested party will suffer prejudice if the orders are granted.
Ratio Decidendi
The court found that the application was unopposed, and the petitioner had demonstrated sufficient grounds for the grant of temporary injunctive and conservatory orders. The petitioner established a prima facie case by showing that he was recorded as the owner in the adjudication register and that the land was subsequently registered in the name of the interested party without rectification despite efforts. The risk of loss of the land to the interested party and the lack of prejudice to the respondents justified the grant of the orders. The court exercised its discretion to allow the application, but limited the duration of the orders to eight months to balance the interests of justice...
Court Disposition
Application for temporary injunction and conservatory orders allowed.
Orders
- Temporary injunction restraining the respondents and their agents from dealing with land registration No. URINGU/1248 pending inter-partes hearing of the application and petition, to remain in force for eight months.
- Conservatory orders stopping the respondents from carrying out any dealings in land registration No. URINGU/1248 pending inter-partes hearing of the application and petition, to remain in force for eight months.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC PETITION NO. 6 OF 2018
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF
FUNDAMENTALRIGHTS AND FREEDOMS UNDER
ARTICLE 40OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF ARTICLE 22, 23 AND 165
OF THE CONTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTIONS 26A, 27 AND 28 OF THE
LAND ADJUDICATION ACT CAP 284 LAWS OF KENYA
AND
IN THE MATTER OF SECTIONS 24, 25 AND 26 OF THE LAND REGISTRATION ACT
AND
IN THE MATTER OF SECTION OF THE LAND ACT NO. 6 OF 2012
AND IN THE MATTER OF ENVIRONMENT AND LAND ACT 2011
BETWEEN
DAVID MAITAI RIMITA....................................................................PETITIONER
AND
THE DISTRICT LAND ADJUDICATION ANDSETTLEMENTS
OFFICER – TIGANIA EAST & WEST DISTRICTS...............1ST RESPONDENT
DIRECTOR OF LAND ADJUDICATION................................2ND RESPONDENT
CHIEF LAND REGISTRAR.......................................................3RD RESPONDENT
AND
JOSPHAT MUTHAURA NKUBITO....................................INTERESTED PARTY
RULING
1. This petition was filed contemporaneously with an application dated 23. 7.2018 where the petitioner is seeking for the following orders:
(i) That this honourable court be pleased to issue an order of temporary injunction restraining the 1st, 2nd, 3rd and 4th Respondents, by themselves, their employees, juniors, officers, agents, servants, representative and/or anybody else whomsoever acting for and/or on their behalf from continuing with and/or carrying out any dealings in the respondent’s land Registration No. URINGU/1248, be it adjudication, subdivision, transfer or any other acts of interference pending inter-partes hearing of this application and the Petition.
(ii) That this honourable court be pleased to issue conservatory orders stopping the 1st, 2nd, 3rd and/or 4th respondents by themselves, their employees, juniors, officers, agents, servants representative and/or anybody else whomsoever acting for/or on their behalf continuing with or carrying out any dealings in the respondent’s land registration No. Uringu 1248 be it adjudication, subdivision, transfer or any other acts of interference, pending inter-partes hearing of this application and the Petition.
(iii) That this honourable court be pleased to issue an order of temporary injunction restraining the interested party by himself, his agents, relatives, employees and/or through anybody else whomsoever acting on his behalf from entering, selling, transferring, depositing building materials or carrying out any acts of interference whatsoever in the respondent’s Land registration No. URINGU/1248 pending the hearing of the application and the petition.
2. The petitioner has filed grounds in support of the application which are;
(i) That in or about the year 1992, land registration No. URINGU/1248 was rightfully recorded in the peittioner’s name.
(ii) That when titles were issued, the said land had been registered in the name of Josphat Muthaura Nkubitu who was/is the second owner in the adjudication register, whereas the petitioner was/is the 4th and the current owner, in the adjudication register.
(iii) That the petitioner has even written to the Cabinet Secretary in an effort to have the registration of the said land rectified but the petitioner’s effort has been futile as there has been no response at all from the cabinet secretary.
(iv) That the petitioner now stands a great risk of losing the said land to the Interested Party.
(v) That it is in the interest of justice and fairness that this application be allowed.
(vi) That the respondents will not suffer any prejudice if the prayers sought herein are granted.
3. The application was served upon the other parties but no response has been filed.
4. The application is unopposed. I allow the same, but the orders given herein are to remain in force for a period of 8 (eight) months.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 17TH DAY OF OCTOBER, 2018
IN THE PRESENCE OF:-
Court Assistant:Janet
Ngunjiri for petitioner
HON. LUCY. N. MBUGUA
ELC JUDGE