[2014] KEHC 3988 (KLR)
The court found that the applicant had established a prima facie case with a probability of success, as he had been living on the suit land with the authority of the deceased and had developed the land. The absence of a response from the petitioner reinforced the applicant's case. The court held that the applicant...
Source-derived case information.
- Citation
- [2014] KEHC 3988 (KLR)
- Parties
- Respondent: Henry Omusenjeri Musungu; Applicant: Reuben Angachi Okoyana
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 380 of 2013
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction
- Outcome
- Application for injunction granted.
- Judges
- SJ Chitembwe
- Legal Topics
- Injunctions, Interlocutory Orders, Probate and Administration, Land Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Omusenjeri Musungu
Respondent
Reuben Angachi Okoyana
Applicant
Procedural Posture
Succession Cause / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the petitioner from interfering with 1 ¾ acres of land out of plot number BUTSOTSO/ESUMEYIA/621 before the succession cause is finalized.
- 2 Whether the applicant has established a prima facie case with a probability of success.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success, as he had been living on the suit land with the authority of the deceased and had developed the land. The absence of a response from the petitioner reinforced the applicant's case. The court held that the applicant would suffer irreparable damage if the injunction was not granted, and therefore, the application for an injunction was merited and granted as prayed, pending the final determination of the succession cause.
Court Disposition
Application for injunction granted.
Orders
- An injunction is issued restraining the petitioner from interfering with 1 ¾ acres of land out of plot number BUTSOTSO/ESUMEYIA/621 pending the determination of the succession cause.
- Costs shall follow the outcome of the main suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
SUCCESSION CAUSE NO: 380 OF 2013
IN THE MATTER OF THE ESTATE OF ABUTALO MUSUNGU BULALO......................................................................................DECEASED
AND
HENRY OMUSENJERI MUSUNGU.....................PETITIONER/RESPONENT
VERSUS
REUBEN ANGACHI OKOYANA.............................OBJECTOR/APPLICANT
RULING
The application dated 8th August, 2013 is seeking an order of injunction against the petitioner in relation to 1 ¾ acres of land out of plot number BUTSOTSO/ESUMEYIA/621.
The application is supported by the applicant’s affidavit parties agreed to argue the application by way of written submissions. The applicant contends that he has been all along occupying the portion of land as it was given to him by the deceased.
He helped to pay school fees for the children of the deceased and he was given that portion and has developed it. The petitioner has tried to evict him from the portion of land and has brought prospective purchasers he would like the petitioner to be restrained before the succession cause is finalized.
The applicant maintains that he lives on the suit land with his family and filed a citation against the petitioner which triggered the filing of this cause. I have not seen a replying affidavit or submissions by the petitioner. Since the objector contends that he has been living on the suit land with the authority of the deceased I do find that the applicant has established a prima facie case with probability of success against the petitioner. He would suffer irreparable damage if the orders are not granted. I find the application to be merited and the same is granted as prayed.
Costs shall follow the outcome of the main suit.
Dated, signed and Delivered at Kakamega this 3rd day of July 2014.
SAID J. CHITEMBWE
JUDGE