[2010] KEHC 3956 (KLR)
The court found that both the applicant and the 1st respondent had plausible claims to ownership of the suit property, each holding documentation purporting to confer title. The 1st respondent was in actual possession and had completed construction on the land. Given the conflicting claims and the fact that the 1st...
Source-derived case information.
- Citation
- [2010] KEHC 3956 (KLR)
- Parties
- Applicant: Fanuel Ooko Raringo; Respondent: Guyo Sarr Huka; Respondent: Commissioner of Lands; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 352 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- Application for temporary injunction partially allowed to the extent of maintaining status quo; no order as to costs.
- Judges
- SP Ouko
- Legal Topics
- Ownership Disputes, Temporary Injunctions, Registration of Title, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fanuel Ooko Raringo
Applicant
Guyo Sarr Huka
Respondent
Commissioner of Lands
Respondent
Attorney General
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant has demonstrated a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether the applicant will suffer irreparable injury not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favors granting the injunction to preserve the status quo.
Ratio Decidendi
The court found that both the applicant and the 1st respondent had plausible claims to ownership of the suit property, each holding documentation purporting to confer title. The 1st respondent was in actual possession and had completed construction on the land. Given the conflicting claims and the fact that the 1st respondent's construction was already complete, the court determined that the balance of convenience required maintaining the status quo pending the hearing and determination of the main suit. The court thus granted the application to the extent of preserving the status quo but declined to restrain construction that was already completed. No order as to costs was made.
Court Disposition
Application for temporary injunction partially allowed to the extent of maintaining status quo; no order as to costs.
Orders
- Status quo to be maintained as of the date of the ruling pending hearing and determination of the suit.
- No order as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 352 of 2008
FANUEL OOKO RARINGO….............PLAINTIFF/APPLICANT
VERSUS
GUYO SARR HUKA.…....…1ST DEFENDANT/RESPONDENT
COMM. OF LANDS….........2ND DEFENDANT/RESPONDENT
THE A.G…....…....………...3RD DEFENDANT/RESPONDENT
RULING
The applicant has brought a suit against the respondents for a declaration that plot No.Nakuru Municipality Block 15/662 (the suit property) belongs to him and a further declaration that the title to the suit property issued to the 1st respondent is null and void and should be cancelled.
The applicant also seeks an order of permanent injunction against the 1st respondent restraining him from alienating, wasting or in any way dealing with the suit property. Simultaneously filed with the suit is chamber summons in which only one prayer is sought pending the determination of the application. The prayer states:
“2). THAT pending the hearing and
determination of this application
interpartes, the 1stDefendant/
H.C.C.C.NO.352/2008
Respondent either by himself, his servant and/or agents be restrained from constructing any permanent building and or structures or in any other way interfering with the plaintiff/applicant’s plot No.NKU/MUN. BLOCK 15/662”
I will turn to this prayer shortly. It is the applicant’s contention that he is the registered proprietor of the suit property and that the 1st respondent has, through collusion with the other two respondents fraudulently obtained registration of the suit property. The 1st respondent has denied these allegations and has counter claimed for a declaration that he is the lawful owner of the suit property and further that the lease certificate issued to the applicant in respect of the suit property is null and void.
In his replying affidavit, the 1st respondent avers that he purchased the suit property for valuable consideration from one Zakayo Kariuki after conducting a search. Thereafter the suit property was transferred to him and Certificate of Lease issued to him. He then embarked on construction of a house which is complete. He has also deposed that the applicant has never occupied the suit property. The other two respondents have not responded to this application
I have considered the foregoing averments as well as annextures in support of each party’s case. Being an application for a
H.C.C.C.NO.352/2008
temporary injunction, the consideration is whether the applicant has
demonstrated a prima facie case with a probability of success; whether the applicant will suffer irreparable injury not capable of being
compensated by an award of damages. When the court is in doubt it will decide the matter on the balance of convenience. See Giella Vs. Cassman Brown & Co. Ltd. (1973) E.A. 358.
First and foremost, the purpose of a temporary injunction is to preserve the subject matter of the dispute pending the final determination of the dispute. I have at the beginning of this ruling set out the prayer sought by the applicant. It is to the effect that the 1st respondent be restrained from constructing any permanent building or structure on the suit premises – or in any way interfering with the suit property. The first limb of that prayer is not available as the 1st respondent has asserted without being contradicted by the applicant that the construction of a building at the suit property is complete. An order to stop the 1st respondent from construction of a building will therefore be in vain. On whether there is a prima facie case, it is noted that both the 1st respondent and the applicant claim ownership of the suit property. The latter has deposed that on 31st May, 1996, the 2nd respondent allocated the suit property to him and has been paying the rates and rents. He was issued with a Certificate of Lease on 29th August, 2008 as the first registered proprietor. The
H.C.C.C.NO.352/2008
former on his part has maintained that he purchased the suit property from one Zakayo Kariuki by a written agreement in the year 2006.
He has annexed a copy of the agreement, a copy of the official search showing that prior to the transfer to him the suit property was
registered in the name of Zakayo Kariuki. There is also a copy of a transfer of lease in favour of the 1st respondent by Zakayo Kariuki.
Finally a copy of the Green Card shows that the suit property was originally registered in the name of Zakayo Kariuki in 2005 before it was transferred to the 1st respondent and a lease certificate issued on 3rd July, 2006. It is noted, however, that a copy of that lease certificate is not annexed.
What is apparent in this mater is that the suit property is registered in favour of two persons, the applicant and the 1st respondent. At this stage, the court is not expected to make any definite findings as to the actual owner of the suit property. With each party claiming ownership, the court will decide the application on a balance of convenience. The 1st respondent is in actual possession of the suit land on which he has put up a permanent building.
The balance of convenience is to maintain status quo as of the date of this ruling pending the hearing and determination of the suit.
H.C.C.C.NO.352/2008
To that extent, the application succeeds and I make no orders as to costs.
Dated, Signed and Delivered at Nakuru this 18th day of January, 2010.
W. OUKO
JUDGE