[2014] KEHC 1635 (KLR)
The court found that the issues raised by both parties—specifically, the nature of the respondent's occupation and the existence of a possible trust or beneficial interest—are fundamental and cannot be resolved summarily at the interlocutory stage. Determining the application for eviction would effectively dispose...
Source-derived case information.
- Citation
- [2014] KEHC 1635 (KLR)
- Parties
- Plaintiff: Gulbano Abdulrasal Achu; Defendant: Fatma Ismail
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 204 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Eviction Proceedings, Ownership Dispute, Trusts in Land, Summary Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gulbano Abdulrasal Achu
Plaintiff
Fatma Ismail
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the respondent should be evicted from land title no. Mombasa/XXVII/86 pending trial.
- 2 Whether the applicant is entitled to summary determination of the eviction application.
- 3 Whether the respondent occupies the premises as a tenant, trespasser, or beneficiary under a trust.
Ratio Decidendi
The court found that the issues raised by both parties—specifically, the nature of the respondent's occupation and the existence of a possible trust or beneficial interest—are fundamental and cannot be resolved summarily at the interlocutory stage. Determining the application for eviction would effectively dispose of the substantive suit without a full hearing on the merits. The court held that such matters require a full trial to properly canvass the evidence and legal arguments. Accordingly, the application for summary eviction was dismissed to preserve the parties' rights to a fair trial.
Court Disposition
application dismissed
Orders
- The notice of motion dated 18th October, 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 204 OF 2013
GULBANO ABDULRASAL ACHU .................... PLAINTIFF
- V E R S U S -
FATMA ISMAIL ................................................ DEFENDANT
RULING
[1] The applicant filed this suit and wants the respondent evicted out of land title no. Mombasa/XXVII/86 which she claims she acquired for valuable consideration in 2011. She avers that she has a title deed and that the premises comprises of two flats, one downstairs and the other upstairs. She states that the respondent who is her daughter- in- law occupies the one upstairs. She claims she wants to lease the same out for Kshs. 40,000 and use the money for her own upkeep. She avers that her daughter-in law does not pay rent for the premises. Her prayers in the plaint and in the suit are the same.
[2] The respondent filed a replying affidavit and admitted that she indeed resides in the apartment upstairs. She however states that she and her husband contributed Kshs. 2,200,000/- and her own mother contributed Kshs. 300,000/- towards the purchase of the said house. She annexed a bank withdrawal slip of Kshs. 2,500,000/- and a bank payment slip of Kshs. 300,000/- in the applicant's name. She avers that after paying the purchase price her husband and her were given the one flat and they moved into the said flat in 2008. She averred that she carried extensive renovations on the flat. She stated that she is neither a tenant nor a trespasser on the premises. She stated that her mother -in- law was registered as the owner of the flat in trust for her and her husband.
[3] These are fundamental issues that can only be canvassed properly during the trial. They cannot be tried in a summary manner as is requested in the application herein. Hearing the application and determining the same would be to determine this suit in a summary manner without hearing the parties. It would not be desirable to do so. The notice of motion dated 18th October, 2013 is dismissed with costs to the respondents.
Dated and delivered in open court at Mombasa this 30th day of October 2014.
S.MUKUNYA
JUDGE
30. 10. 2014
In the presence of:
Miss Njoroge advocate for the plaintiff
Mr Omolo for the defendant