[2009] KEHC 1009 (KLR)
The court found that the act complained of—occupation of the disputed land and demolition of the fence—had already taken place. As such, a prohibitory injunction was not appropriate, and only a mandatory injunction could redress the situation. However, the court declined to grant the orders sought, emphasizing that...
Source-derived case information.
- Citation
- [2009] KEHC 1009 (KLR)
- Parties
- Applicant: Daniel Mose Nchore; Respondent: Ondara Nchore
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 10 of 2002
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Land Disputes, Jurisdiction of Tribunals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mose Nchore
Applicant
Ondara Nchore
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the respondent should be restrained by injunction from trespassing, demolishing the fence, or ploughing the disputed land pending hearing of the revocation application.
- 2 Whether the Land Disputes Tribunal and subordinate court had jurisdiction to determine the respondent's claim to the land.
Ratio Decidendi
The court found that the act complained of—occupation of the disputed land and demolition of the fence—had already taken place. As such, a prohibitory injunction was not appropriate, and only a mandatory injunction could redress the situation. However, the court declined to grant the orders sought, emphasizing that the substantive application for revocation of the grant should be set down for hearing to resolve the underlying dispute. The court dismissed the application for injunction, noting that the respondent did not attend and would not be awarded costs.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed.
- The respondent shall not be awarded costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Succession Cause 10 of 2002
IN THE MATTER OF THE ESTATE OF JOPSEPH SIANGUDECEASED
AND
DANIEL MOSE NCHORE……………………….PETITIONER/APPL.
VERSUS
ONDARA NCHORE…………………………….......OBJECTOR/RESP.
RULING
The grant in this Succession Cause was issued to the petitioner/applicant on 27/2/2002 and subsequently the deceased’s land parcel of land no, Matutu Settlement Scheme/153 was registered into his name as an absolute proprietor. The confirmation was on 24/9/2002.
The applicant subdivided the land into two Matutu Settlement scheme/633 and 634.
The objector/respondent went to the Borabu Division Land Disputes Tribunal claiming 5 acres of parcel 153 and he was successful. The Tribunal’s decision was delivered on 6/6/2002 and was adopted by the Keroka Resident Magistrate’s Court on 22/10/2002.
Before this court there is an application by the respondent to have the grant confirmed to the applicant to be revoked. The application was filed on 17/7/2008 and has not been heard.
Presently, the applicant seeks under Order 39 rules 1,2,3 8A and 9to the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act to have the respondent restrained from demolishing the fence between them in parcel 633 and also to stop the respondent from trespassing onto or ploughing the land occupied by the applicant until the suit is heard and finalized. The applicant stated that parcel 633 measures 5. 1 Hectares and that it is being illegally occupied by the respondent. The occupation resulted from the Tribunal’s decision that awarded him 5 acres. The applicant claims that neither the Tribunal nor the subordinate court had jurisdiction to entertain the respondent’s claim to the land.
The respondent is occupying part of 633 and the application seeks to stop trespass. The act being complained of has already taken place and can only be redressed by a mandatory injuction. The injunction being sought is prohibitory in nature.
I ask that the parties do set down the application for revocation for hearing and to leave these many sideshows.
In the meantime, the application is dismissed. The respondent did not attend and shall therefore not get costs.
Dated at Kisii this 7th day of October,2009
A.O.MUCHELULE
JUDGE
7/10/2009
Before Hon. A.O.Muchelule-J
Court clerk-Mongare
Mr. Mokua –present
Court: Ruling in open court
A.O.MUCHELULE
JUDGE
7/10/2009