[2024] KEELC 734 (KLR)
The court found that the applicant had demonstrated a prima facie case for the preservation of L.R No. Nyaki/Kithoka/Mwanika/524, as she had purchased, developed, and possessed the land, and there was a real risk of irreparable loss if the respondent disposed of or interfered with the property. The previous orders...
Source-derived case information.
- Citation
- [2024] KEELC 734 (KLR)
- Parties
- Appellant: Joyce Gacheri; Respondent: Stanley Gatobu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E041 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Application for Inhibition and Injunction Pending Appeal
- Outcome
- Application allowed in part; previous orders amended to reflect correct property; inhibition and injunction granted for one year.
- Judges
- CK Nzili
- Legal Topics
- Interlocutory Injunctions, Land Title Disputes, Specific Performance, Preservation of Suit Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Gacheri
Appellant
Stanley Gatobu
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Application for Inhibition and Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an inhibition and temporary injunction over L.R No. Nyaki/Kithoka/Mwanika/524 pending appeal.
- 2 Whether the previous orders issued on a different title number should be amended to reflect the correct property.
- 3 Whether the applicant will suffer irreparable loss if the orders are not granted.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie case for the preservation of L.R No. Nyaki/Kithoka/Mwanika/524, as she had purchased, developed, and possessed the land, and there was a real risk of irreparable loss if the respondent disposed of or interfered with the property. The previous orders for inhibition and injunction were issued against a non-existent title due to subdivision, rendering them ineffective. The applicant provided updated evidence of the current title and complied with security for costs. The respondent did not dispute the new facts. The court therefore amended the orders to reflect the correct parcel, ensuring the subject matter of the appeal is...
Court Disposition
Application allowed in part; previous orders amended to reflect correct property; inhibition and injunction granted for one year.
Orders
- Orders of inhibition and temporary injunction to subsist over L.R No. Nyaki/Kithoka/Mwanika/524 for one year.
- Lower court file to be availed for hearing of the appeal on a priority basis.
Full Case Text
Judgment text and source record
26 paragraphs
Gacheri v Gatobu (Environment and Land Appeal E041 of 2023) [2024] KEELC 734 (KLR) (14 February 2024) (Ruling)
Neutral citation: [2024] KEELC 734 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal E041 of 2023
CK Nzili, J
February 14, 2024
Between
Joyce Gacheri
Appellant
and
Stanley Gatobu
Respondent
Ruling
1. The court is asked by an application dated 16. 11. 2023 toa.Inhibit any dealings over L.R No. Nyaki/Kithoka/Mwanika/524 pending hearing and determination of this appeal.b.Issue temporary injunction barring and restraining the respondent, his agents, servants, or employees from in any way whatsoever interfering with L.R No. Nyaki/Kithoka/Mwanika/524.
2. The reasons are set on the face of the application and in the supporting and further affidavits sworn by Joyce Gacheri on 16. 11. 2023 and 15. 1.2024, respectively. Briefly, the applicant avers she had bought 0. 50 acres out of L.R No. Nyaki/Kithoka/73, by an agreement dated 9. 8.2010 and through CM ELC No. 121 of 2019, she sought for specific performance.
3. It was averred during the trial that the respondent subdivided L.R No. 73 into four portions L.R No. Nyaki/Kithoka/521 – 524, L.R. No. 524 being the one she laid a claim on which she has extensively developed and has been in possession of, which after the judgment, the respondent has threatened to dispose of to third parties and evict her from the land.
4. The applicant averred that unless the orders sought were issued, she would suffer irreparable loss and damage. The applicant averred that she had previously sought an injunction but misinformed the advocate in the previous ruling to which she had deposited Kshs.100,000/= as security for costs; otherwise, the previous orders related to L.R No. Nyaki/Kithoka/73 and not LR No. Nyaki/Kithoka/524, which should be preserved.
5. The application was opposed through a replying affidavit sworn by Stanley Gatobu on 24. 11. 2023. It was averred that out of a similar application dated 2. 6.2023, that this court by a ruling dated 11. 10. 2023, pronounced itself on the issues, and, therefore, the instant application was a waste of precious judicial time.
6. The respondent averred that the appellant and her counsel could not feign ignorance of the change of particulars of the parcel of land in dispute right from the primary suit. Moreso, the respondent averred that the applicant has been indolent and lacks diligence; hence has been litigating in piecemeal; otherwise, if the court grants the application, costs should be provided for.
7. In a supplementary affidavit dated 15. 1.2024, the applicant says when the previous application came up for hearing on 16. 11. 2023, the court requested a recent official search, which she obtained on 9. 1.2024 attached as an annexure marked J.G. 1. Similarly, she applicant averred she has therefore appraised the court on the current status of the ownership and that there will be no prejudice occasioned to the respondent.
8. By a ruling delivered on 11. 10. 2023 similar orders as in the instant application were granted. The only new issue raised in the instant application is that at the time the orders were issued, the applicant was under the impression that L.R NO. Nyaki/Kithoka/Mwanika/73, the subject matter in the lower court was still intact. Therefore, the court issued the orders for a non-existent title number, hence rendering the orders academic.
9. From the official search dated 9. 1.2024, it is apparent that on 5. 4.2022, the respondent was issued with a title deed for L.R No. Nyaki/Kithoka/Mwanika/524, which was also inhibited by an order dated 11. 1.2022 until ELC No. 121 of 2019 was heard and determined. So by the time judgment in the lower court was issued on 31. 5.2023, L.R No. Nyaki/Kithoka/73 was already subdivided into L.R No’s. 521 – 524.
10. The respondent has not said whether he had disclosed such facts at the lower court. Be that as it may, evidence is there from the official search that there were subsisting inhibition orders at the lower court which dissipated or were rendered in operational when the suit in the lower court was determined. The respondent has not opposed the application or denied the new facts, save the issue of costs. The applicant had complied by depositing the security of Kshs.100,000/= after the orders were issued on 11. 10. 2023. Consequently, I allow the application to the extent that the orders issued on 11. 10. 2023 for inhibition and temporary injunction be amended to reflect L.R No. Nyaki/Kithoka/Mwanika/524 instead of L.R No. Nyaki/Kithoka/Mwanika/73.
11. The order shall subsist for a period of one year. The lower court file be availed for the hearing of the appeal on a priority basis.Orders accordingly.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 14THDAY OF FEBRUARY 2024In presence ofC.A KananuRespondentWambua for Hiram Kirimi for the ApplicantMr. Mokua for the RespondentHON. CK NZILIJUDGE