[2010] KEHC 2449 (KLR)
The court found that the plaintiffs failed to establish a prima facie case with a probability of success because they did not provide sufficient evidence of their beneficial interest in the suit land. Their refusal to undergo DNA testing, when paternity was denied by the 1st defendant, left their claim unsupported....
Source-derived case information.
- Citation
- [2010] KEHC 2449 (KLR)
- Parties
- Plaintiff: Gladys Chepkemoi Maina; Plaintiff: Emily Maina; Plaintiff: Agness Maina; Plaintiff: Chemutai Maina; Defendant: Taptugen Arap Maina; Defendant: Monica Chepkorir Maina
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application for injunction dismissed with costs to the defendants
- Judges
- DK Maraga
- Legal Topics
- Land Ownership Dispute, Rectification of Register, Injunctions, Beneficial Interest, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Chepkemoi Maina
Plaintiff
Emily Maina
Plaintiff
Agness Maina
Plaintiff
Chemutai Maina
Plaintiff
Taptugen Arap Maina
Defendant
Monica Chepkorir Maina
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case with a probability of success for the grant of an interlocutory injunction.
- 2 Whether the plaintiffs have a beneficial interest in the suit land as children of the 1st defendant.
- 3 Whether the transfer of the suit land to the 2nd defendant was fraudulent.
Ratio Decidendi
The court found that the plaintiffs failed to establish a prima facie case with a probability of success because they did not provide sufficient evidence of their beneficial interest in the suit land. Their refusal to undergo DNA testing, when paternity was denied by the 1st defendant, left their claim unsupported. Without proof of their relationship to the 1st defendant or evidence of fraud in the transfer of the land, the plaintiffs did not meet the threshold for the grant of an interlocutory injunction. The application for injunction was therefore dismissed with costs to the defendants.
Court Disposition
application for injunction dismissed with costs to the defendants
Orders
- The plaintiffs' application for injunction is dismissed.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 24 of 2009
GLADYS CHEPKEMOI MAINA……………..1ST PLAINTIFF
EMILY MAINA……………………………..….2ND PLAINTIFF
AGNESS MAINA………………………………3RD PLAINTIFF
CHEMUTAI MAINA……………………….….4TH PLAINTIFF
VERSUS
TAPTUGEN ARAP MAINA……………...…1ST DEFENDANT
MONICA CHEPKORIR MAINA………..…2ND DEFENDANT
RULING
The plaintiffs in this case claim that as children of the 1st defendant, Taptugen Arap Maina, they occupy ½ of his piece of land situate in Nakuru and known as Njoro/Ngata Block 5/108 (the suit piece of land). In April 2008, the 2nd defendant who is their step mother entered upon the portion they occupy, demolished their buildings and cultivated it. On enquiry the plaintiffs were surprised to learn that the 1st defendant had transferred the suit piece of land to the 2nd defendant. They regard that act as fraudulent. They therefore claim for an order to rectify the register and have the 1st defendant registered as the owner of the suit piece of land after which the 1st defendant should be compelled to transfer half of that land to them. They also claim for an order to restrain the defendants from interfering with their quiet occupation of the portion in their possession.
Contemporaneous with the filing of the suit they filed an application for injunction. When it came before me for further hearing on 20th March 2010, the 1st defendant vehemently denied being the father of the plaintiffs and stated through his counsel that he is prepared to undergo a DNA examination to verify his claim. When I asked the applicants if they were also ready to undergo the same examination they declined.
In view of this and with nothing else on record to proof their beneficial interest in the suit land I find that the applicants have not made out a prima facie case with a probability of success. Consequently I dismiss their application for injunction with costs to the defendant.
DATED and DELIVERED this 26th day of April 2010.
D. K. MARAGA
JUDGE.