[2010] KEHC 714 (KLR)
The court found that the applicant, though the registered proprietor, had not established a sufficient basis for the grant of an interlocutory injunction, particularly as the respondent's occupation of one acre was admitted and not denied. The court also noted that the issue of trust had been raised and required...
Source-derived case information.
- Citation
- [2010] KEHC 714 (KLR)
- Parties
- Applicant: Gilbert Okaka Lukoko; Respondent: Godfrey Nanjira Lukoko
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 113 of 2010
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application for injunction dismissed. Status quo to be maintained.
- Legal Topics
- Injunctive Relief, Status Quo Orders, Ancestral Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Okaka Lukoko
Applicant
Godfrey Nanjira Lukoko
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from occupying or interfering with the suit land.
- 2 Whether the status quo regarding occupation and use of the suit land should be maintained pending hearing and determination of the suit.
Ratio Decidendi
The court found that the applicant, though the registered proprietor, had not established a sufficient basis for the grant of an interlocutory injunction, particularly as the respondent's occupation of one acre was admitted and not denied. The court also noted that the issue of trust had been raised and required substantive investigation at trial. Accordingly, the court dismissed the application for injunction and ordered that the status quo be maintained, allowing the respondent to continue occupying and farming the one acre he currently uses, without further development or interference with the land's substratum, until the suit is heard and determined.
Court Disposition
Application for injunction dismissed. Status quo to be maintained.
Orders
- The application dated 27.7.2010 is dismissed.
- The status quo regarding the suit land shall be maintained until the suit is heard and determined.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL SUIT NO. 113 OF 2010
GILBERT OKAKA LUKOKO ……………………. PLAINTIFF/APPLICANT
V E R S U S
GODFREY NANJIRA LUKOKO .…………. DEFENDANT/RESPONDENT
R U L I N G
1. The Applicant and Respondent are brothers and their dispute relates to the use and occupation of title no. Marama/Shitosa/611. It is common ground that the land is registered in the names of the Applicant. It is also common ground that the Respondent is in occupation thereof and in his Replying Affidavit sworn on 2. 8.2010, he depones that he only occupies one acre thereof and the rest is occupied by the Plaintiff. That fact has not been denied and so prima facie I take it to be true.
2. For the above reasons and looking at the Application dated 27. 7.2010, it is my considered view that the Applicant is not entitled to an injunction under Order XXXIX Rules 1and2of the Civil Procedure Rules. I say so also and in addition because from the Assistant Chief’s letter dated 2. 8.2010, the issue of trust to land has been raised and that is a matter to be investigated at the hearing. The Assistant Chief, Shisembe sub-location also confirms that the parties occupy different portions of the land which according to the Respondent is ancestral land.
3. In the event, the best order to make and while dismissing the Application dated 27. 7.2010, is to order that the status quo regarding the suit land shall be maintained until the suit is heard and determined. That means that the Respondent shall remain and use the one acre of landthat he presently occupies and shall only farm on it and put up no further structures on in any way interfere with the substratum thereof.
4. Each party will bear its own costs of the Application.
5. Orders accordingly.
Delivered, dated and signed at Kakamega this 16th day of November, 2010
ISAAC LENAOLA
J U D G E