[2015] KEHC 4408 (KLR)
The court found that the applicant failed to present tangible facts to support the claim that the respondent intended to alienate or dispose of the suit land. The respondent, as the duly appointed administratrix of the deceased's estate, had a prima facie better claim to the land at this stage. Furthermore, the suit...
Source-derived case information.
- Citation
- [2015] KEHC 4408 (KLR)
- Parties
- Applicant: David Oprong George; Respondent: Norah Adhiambo Omuse (as legal representative of Basil Pamba Okomuli alias Omuse Opama Ikomuli, deceased)
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Temporary Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Adverse Possession, Injunctive Relief, Land Registration, Succession and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Oprong George
Applicant
Norah Adhiambo Omuse (as legal representative of Basil Pamba Okomuli alias Omuse Opama Ikomuli, deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Temporary Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case that the respondent intends to dispose of the suit land.
- 2 Whether the applicant is entitled to orders of inhibition and temporary injunction against the respondent in respect of the suit land.
Ratio Decidendi
The court found that the applicant failed to present tangible facts to support the claim that the respondent intended to alienate or dispose of the suit land. The respondent, as the duly appointed administratrix of the deceased's estate, had a prima facie better claim to the land at this stage. Furthermore, the suit land was already subject to a restriction by the Land Registrar, and any lifting of the inhibition would require due process involving the applicant. There was no evidence that due process would not be followed or that the applicant's interests were at risk. Consequently, the court held that there was no merit in the application for inhibition and temporary injunction, and...
Court Disposition
application dismissed with costs
Orders
- The application dated 12th November, 2014 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA
ELC. NO. 09 OF 2012.
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CAP 22
OF LAWS OF KENYA
AND
IN THE MATTER OF THE LAND REGISTRATION ACT NO. 3 OF 2012
AND
IN THE MATTER OF A CLAIM FOR ADVERSE POSSESSION
BETWEEN
DAVID OPRONG GEORGE……………………………………………………APPLICANT
-VERSUS-
NORAH ADIAMBO OMUSE (As legal
Representative of BASIL PAMBA OKOMULI alias
OMUSE OPAMA IKOMULI (DECEASED)……………......……………. RESPONDENT.
R U L I N G.
1. DAVID OPRONG GEORGE,The Applicant, through his counsel filed the Notice of Motion under certificate of urgency dated 12th November, 2014 for inhibition and temporary injunction on land parcel South Teso/Apokor/1350. The application is based on five grounds on the face of it and Applicant’s supporting affidavit sworn on 28th October, 2014.
2. The application is opposed by Norah Adhiambo Amuse, the Respondent, who filed a replying affidavit , through her counsel sworn on 5th May, 2015.
3. The main issue for determination is whether the Applicant has presented facts to prima facie show that the Respondent intends to dispose off the suit land and if so, whether the orders sought should be issued.
4. The application came up for hearing on 6th May, 2015. Mr. Onsongo and MS. Imwene for the Applicant and Respondent respectively presented their submissions. The court has carefully considered the grounds on the application, the counsel ‘s submissions, the supporting and replying affidavits and find as follows;
a) That the suit land South Teso/Apokor/1350 is a subdivision of South Teso/Apokor/1318 as confirmed in the copy of the register filed with the originating summons dated 24th October, 2012.
b) That the suit land is registered in the names of Omuse Opama Ikomuli since 17th January, 1986.
c) That the said Omuse Opama Ikomuli alias Basil Pamba Ikomoli died on 1st July, 2002 and the Respondent herein was appointed the administratrix of the deceased’s estate on 26th July, 2011 in Busia H.C. Succession Cause No. 182 of 2011 as confirmed by the copy of the grant filed with the said originating summons.
d) That the appointment of the Respondent as the administratrix of her deceased father’s estate has not been challenged and between the Applicant and the Respondent, the latter prima facie has a better claim than the former over the suit land and an injunction cannot issue against her at this stage.
e) That the Applicant has not presented any tangible facts to support his claim that the Respondent intends to alienate the suit land. The court notes that the title to the suit land has been restricted by the Land Registrar through the Applicant’s application. The Land Registrar can only lift the inhibition in accordance with section 73 of the Land Registration Act 2012 which requires the one who filed the caution to be involved. There is nothing to show that the due process would not be followed in the event the restriction filed is to be lifted and there is no need to issue an inhibition order.
5. That having found as above, the court finds no merit in the application under certificate of urgency dated 12th November, 2014 and the application is dismissed with costs.
It is so ordered.
S.M. KIBUNJA,
JUDGE.
DATED AND DELIVERED ON ….11TH….DAY OF JUNE, 2015.
IN THE PRESENCE OF;
APPLICANT……….. PRESENT……………………………………
RESPONDENT……PRESENT………………………………………
COUNSEL……MR. IPAPU FOR ONSONGO FOR APPLICANT.…………………..