[2013] KEHC 5277 (KLR)
The court found that the plaintiffs failed to establish a prima facie case with a probability of success. The defendant is the registered owner of the suit land, and there was no evidence that the land was ancestral or that the defendant held it in trust for the plaintiffs. The court held that customary rights...
Source-derived case information.
- Citation
- [2013] KEHC 5277 (KLR)
- Parties
- Plaintiff: Elijah Ayuku Ngaira; Plaintiff: Steth Litiema; Defendant: Festo Ayuku Ngaira
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 127 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Inhibition
- Outcome
- application dismissed with costs to the defendant
- Legal Topics
- Customary Land Rights, Registered Land Act, Inhibition Orders, Trusts in Land, Succession Rights
- 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
Elijah Ayuku Ngaira
Plaintiff
Steth Litiema
Plaintiff
Festo Ayuku Ngaira
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Inhibition
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case with a probability of success to warrant an order of inhibition against the defendant.
- 2 Whether customary rights of inheritance override the rights of a registered proprietor under the Registered Land Act.
- 3 Whether the defendant holds the suit land in trust for the plaintiffs.
Ratio Decidendi
The court found that the plaintiffs failed to establish a prima facie case with a probability of success. The defendant is the registered owner of the suit land, and there was no evidence that the land was ancestral or that the defendant held it in trust for the plaintiffs. The court held that customary rights cannot override the statutory rights of a registered proprietor under the Registered Land Act. The plaintiffs' apprehension of irreparable harm was unfounded as there was no evidence the defendant intended to dispose of the entire property. The application for inhibition was therefore dismissed for lack of merit.
Court Disposition
application dismissed with costs to the defendant
Orders
- The application for inhibition is dismissed.
- The plaintiffs shall pay the costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Civil Case 127 of 2011 [if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif";} </style> <![endif]
ELIJAH AYUKU NGAIRA ……………………………. 1ST PLAIANTIFF
STETH LITIEMA ………………………………………... 2ND PLAINTIFF
V E R S U S
FESTO AYUKU NGAIRA ………………………………….. DEFENDANT
R U L I N G
The application dated 26. 9.2011 the two applicants are seeking an order of inhibition prohibiting the respondent from transferring parcels numbers ISUKHA/VIRHEMBE/1612, 1613, 1614, 1647and15 pending the hearing and determination of this case. The application is supported by the affidavit of the 1st applicant sworn on the 26. 9.2011. The defendant filed a replying affidavit sworn on the 17. 10. 2011. Parties agreed to file written submissions. Parties further filed further affidavits and further replying affidavits.
The pleadings show that the plaintiffs are the defendant’s children. Their contention is that the suit land was inherited from their grandfather, the late NGAIRA and it is therefore land owned under customary traditions. This gives the plaintiffs a lawful claim and are entitled to inherit the land from the defendant. They live on the suit land with their families. They have constructed their homes and are apprehensive that the defendant will dispose of the land. The defendant started sub-dividing the land and he is about to sell a portion thereof.
On his part the defendant contends that the land is his and he is entitled to utilize it the way he wants. He is a sole registered proprietor of the suit land. He was forcefully marched to the chief’s office where he was made to apply to the Land Control Board for consent to sub-divide the land and allocate it to his sons living him with nothing. He was willing to give part of his land to his children but their behavior of taking him through the provincial administration amounts to cross misconduct. In his written submissions counsel for the defendant, contend that customary rights cannot override the rights of a registered owner under the Registered Land Act as held in the case of ESIROYO VS ESIROYO & ANOTHER [1973] E.A. 388. It is also contended that the defendant is holding the land in trust for the plaintiffs and that allegation is denied by the defendant. The pleadings show that the original plot number KAKAMEGA/VIRHEMBE/895 was registered in the names of the defendant in 1976. The plot measures 3. 0 hectares. It appears that there was intention to sub-divide the land and it is possible that it is the plaintiffs who were pushing for the sub-division so that they could be given their share of the land during their father’s lifetime. The main issue to be determined is whether the plaintiffs have a prima facie case with a probability of success against the defendant. Parties are agreeable that the defendant is the registered owner of the suit land. That fact in itself give the defendant the right to deal with his land as he so wishes. I do believe that the defendant is not mindful of the interests of his children. It has not been shown that the defendant is disposing of the entire suit property and therefore the issue of irreparable damage that might befall the plaintiffs does not arise. The defendant is at liberty to sell a portion of his land. The plaintiffs should exercise restraint in their greed to succeed their father who is still alive. There is no evidence that this was ancestral land and the plaintiffs do not have the right to inhibit their father’s right to utilize his property.
In the end I do find that the plaintiffs have no prima facie case with a probability of success against the defendant. The application herein lacks merit and the same is dismissed. Since the plaintiffs have exhibited extreme greed and would like to compel their father to give them part of his land I will condemn them to pay the costs of the application.
Delivered, dated and signed at Kakamega this 7th day of February, 2013
SAID J. CHITEMBWE
J U D G E