[2006] KEHC 99 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit property, had established a prima facie case with a probability of success. The Kabarnet Municipal Council, not being the registered owner, had no legal authority to lease the property to the defendant. The defendant's claim of tenancy was...
Source-derived case information.
- Citation
- [2006] KEHC 99 (KLR)
- Parties
- Plaintiff: Elisha Chebii Chesiyna; Defendant: Isaiah Chebii
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 210 of 2006
- Procedural Posture
- Civil Case / Interlocutory Application (chamber Summons) for Injunction
- Outcome
- Interlocutory injunction granted in favour of the plaintiff.
- Legal Topics
- Injunctive Relief, Ownership Disputes, Land Registration, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elisha Chebii Chesiyna
Plaintiff
Isaiah Chebii
Defendant
Procedural Posture
Civil Case / Interlocutory Application (chamber Summons) for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to restraining orders against the defendant from interfering with Plot Number L.R No.9038/213.
- 2 Whether the defendant has any legal right to occupy or lease the suit property.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit property, had established a prima facie case with a probability of success. The Kabarnet Municipal Council, not being the registered owner, had no legal authority to lease the property to the defendant. The defendant's claim of tenancy was therefore invalid, and any dispute regarding alleged grabbing of the land by the plaintiff should be addressed through proper legal mechanisms, not by leasing the property to third parties. The plaintiff was entitled to interlocutory injunctive relief to preserve the status quo pending determination of the suit.
Court Disposition
Interlocutory injunction granted in favour of the plaintiff.
Orders
- The defendant is restrained from building, entering or interfering in any manner with Plot Number L.R No.9038/213 Kabarnet pending determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 210 of 2006
ELISHA CHEBII CHESIYNA ………….….........… PLAINTIFF
VERSUS
ISAIAH CHEBII…………….…….........…..……. DEFENDANT
RULING
The applicant has filed the Chamber Summons dated 30th October 2006 seeking for restraining orders against the defendant from building, entering or interfering in any manner with Plot Number L.R No.9038/213 Karbarnetpending the determination of the matter.
The grounds in support of the application are stipulated on the body of the application and expounded in greater detail in the supporting affidavit of the applicant.
Briefly stated, the applicant is the registered proprietor of LR No.9038/213 in Kabarnet Town. He has exhibited a copy of grant which was issued on 1st January 1990 and receipts for land rent and rates in respect of the suit premises.
On the part of the respondent, he claims that he was allowed to lease the land by the Kabarnet Municipal Council on 6th October 2006 and thus he is a tenant of the County Council who should have been sued. The replying affidavit filed by the respondent is not sworn before the Commissioner for Oaths and thus it is incompetent and should be struck off.
I am satisfied that the plaintiff has been able to establish a prima facie case with a probability of success, that he is the legal owner of the suit premises. If the Kabarnet Municipal Council purported to lease the plot to the defendant, they are not the registered owners of the plot and thus they cannot lease the same. If the defendant claims the plot was grabbed from the Kabarnet Country Council, they should follow the laid down mechanism of recovering the land but they cannot do so by leasing the property to the defendant.
Accordingly, the orders sought by the plaintiff in terms of prayer number 2 are hereby granted.
Costs shall be in the cause.
It is so ordered.
Ruling read and delivered on 14th October 2006.
MARTHA KOOME
JUDGE