[2006] KEHC 399 (KLR)
The court found that the applicant is the registered proprietor of the disputed land, as evidenced by a title deed issued in 1978. The respondents' allegations of fraud were not supported by a properly framed counterclaim, and they lacked locus standi as they had not obtained letters of administration to their...
Source-derived case information.
- Citation
- [2006] KEHC 399 (KLR)
- Parties
- Applicant: Dr. Wilson Makongo Marwa; Defendant: Toma Robi Magige; Defendant: Samwel Magige
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 94 of 2006
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- Application allowed. Temporary injunction granted.
- Judges
- K Bauni
- Legal Topics
- Temporary Injunctions, Registered Land Ownership, Trespass, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Wilson Makongo Marwa
Applicant
Toma Robi Magige
Defendant
Samwel Magige
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the defendants from interfering with land parcel No. NYABASI/BUSONGA/54 pending the hearing and determination of the suit.
- 2 Whether the applicant has established a prima facie case with a probability of success.
- 3 Whether the balance of convenience tilts in favour of the applicant.
Ratio Decidendi
The court found that the applicant is the registered proprietor of the disputed land, as evidenced by a title deed issued in 1978. The respondents' allegations of fraud were not supported by a properly framed counterclaim, and they lacked locus standi as they had not obtained letters of administration to their father's estate. The applicant established a prima facie case for a temporary injunction, as the only tangible evidence before the court was his registration as owner. The balance of convenience favoured the applicant, and failure to grant the injunction would expose him to irreparable harm not easily compensable by damages. The court therefore granted the temporary injunction...
Court Disposition
Application allowed. Temporary injunction granted.
Orders
- The respondents, their agents and/or servants are restrained from entering into, erecting structures or interfering with parcel No.NYABASI/BUSONGA/54 until the suit is heard and finalized.
- The respondents shall pay the costs of this application to the applicant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 94 of 2006
DR. WILSON MAKONGO MARWA …………………… APPLICANT
VERSUS
TOMA ROBI MAGIGE
SAMWEL MAGIGE…………….................………….. DEFENDANTS
RULING
The applicant/Plaintiff seeks for an order of temporary injunction restraining the defendants, their agents and or servants from entering into or erecting any structures or interfering with land Parcel No.NYABASI/BUSONGA/54 until the suit is heard and disposed off. In prayer (d) he sought O.C.P.D. Kuria to implement the said order of granted.
The applicant deponed and it was submitted by Mr. Soire on his behalf that he is the registered owner of the land in question.
In June 2006 the respondent, their agents and servants invaded the applicants land and are subjecting it to waste and their stay there is unlawful.
The application was opposed. There was a replying affidavit and with the leave of the court a further of the court a further affidavit was also filed. It was deponed also submitted by Mr. Ondari for the respondents that the land in dispute belongs to their father.
The father never sold it to the applicant and he got registered as the owner by fraud. DANIEL MAGIGE WAMBURA deponed that he did not sign any documents to have the land transferred to the applicant. They said that they have been staying in the land since their father died in 1973.
I have considered the application, affidavits annextures and submission. I am satisfied that the applicant has shown that there is need to grant the orders sought. It is not in dispute that the applicant is currently the registered owner of the land. He has exhibited a copy of Title deed issue to him in 1978. Eighteen years have gone by since then. True the applicant are claiming that the registration was through fraud but this is an issue to be addressed during the main hearing. As of now the only tangible evidence placed before the court is that of registration. The application is the registered proprietor and as such balance of convenience tilts in his favour. He deponed that the respondent trespassed into the land on 24th June 2006.
This was not seriously contested. The respondent only stated that they have been living there. I am satisfied that the applicant has established a prima facie case. If the orders sought are not granted he will no doubt, as the registered owner suffer loss which may not be easily quantified for compensation by way of damages.
Lastly I do note that the respondents, though they state their father died in 1973 have not taken any letters of Administration to his Estate.
In the defendant filed, though there are allegations of fraud there is no counterclaim which has been framed properly. It is not enough to ask court to cancel the registration when there is no proper counterclaim set out in the defence. The original owner of the land is already dead and nobody seems to have taken steps to administer his Estate. There is therefore the issue of locus standi and whether any of the respondent can pray for cancellation of the title. All these are issues to be addressed during the hearing of the main suit.
The upshot of the matter is that I find the application has good merit and it is allowed.
The respondents are hereby restrained by themselves, their agents and/or servants from entering into, erecting structures or interfering with parcel No.NYABASI/BUSONGA/54 until the suit is heard and finalized.
They will also pay costs of this application to the applicant.
Dated 17th November 2006.
KABURU BAUNI
JUDGE
Delivered in presence of:
cc. Mobisa
Mr. Ondari for Respondent.
N/A for Applicant.