[2013] KEHC 1330 (KLR)
The court found that the applicant had established a prima facie case because the 1st defendant was registered as proprietor of land parcels whose total acreage exceeded what was awarded by the tribunal and agreed in the sale agreement. The documentary evidence, including official searches and the sale agreement,...
Source-derived case information.
- Citation
- [2013] KEHC 1330 (KLR)
- Parties
- Plaintiff: Jephther Nalianya Munyikana; Defendant: Benson Wanyama Nalwa; Defendant: The Land Registrar; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 127 of 2013
- Procedural Posture
- Land and Environment Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction allowed.
- Legal Topics
- Temporary Injunctions, Land Title Disputes, Subdivision of Land, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jephther Nalianya Munyikana
Plaintiff
Benson Wanyama Nalwa
Defendant
The Land Registrar
Defendant
The Attorney General
Defendant
Procedural Posture
Land and Environment Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the 1st defendant from dealing with the suit properties pending determination of the suit.
- 2 Whether the 1st defendant acquired more land than was awarded by the tribunal and agreed in the sale agreement.
Ratio Decidendi
The court found that the applicant had established a prima facie case because the 1st defendant was registered as proprietor of land parcels whose total acreage exceeded what was awarded by the tribunal and agreed in the sale agreement. The documentary evidence, including official searches and the sale agreement, showed a contradiction between the land the 1st defendant was entitled to and what he actually acquired. This discrepancy justified the preservation of the suit properties through a temporary injunction to prevent further dealings pending the determination of the main suit. The court therefore allowed the application for a temporary injunction and awarded costs to the applicant.
Court Disposition
Application for temporary injunction allowed.
Orders
- A temporary injunction is granted restraining the 1st defendant, his agents, servants, or any person acting under his authority from transferring, wasting, damaging, alienating, trespassing, selling, utilizing, developing, removing or otherwise disposing of Ndivisi/Makuselwa/2232, Ndivisi/Makuselwa/2233,...
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 127 of 2013
JEPHTHER NALIANYA MUNYIKANA......…….....................… PLAINTIFF
VERSUS
BENSON WANYAMA NALWA.........…....................…1ST DEFENDANT
THE LAND REGISTRAR...........................................2ND DEFENDANT
THE ATTORNEY GENERAL.....................................3RD DEFENDANT
RULING
By Notice of Motion dated 6th May 2013 brought under Order 51 Rule 1 & Order 40 Rule 1 of the Civil Procedure Rules the Applicant seeks orders;
4. THAT pending the hearing and determination of this suit there be an order for temporary injunction against the 1st Defendant/Respondent restraining him by himself or his agents and or servants and or any other person acting under his authority or direction from transferring,wasting, damaging, alienating, trespassing, selling, utilizing,developing, removing or otherwise disposing off those portions namely Ndivisi/Makuselwa/2232,Ndivisi/Makuselwa/2233, Ndivisi/Makuselwa/2234 and Ndivisi/Makuselwa/2235.
The application is supported by the grounds on the face of it and the affidavit sworn by the Applicant. The 1st Respondent opposed the application and filed a replying affidavit. The 2nd & 3rd Respondents have not filed any documents in opposition. When the application came up for hearing, the Applicant and 1st Respondent chose to rely on the pleadings filed and left it to the court to make a finding.
I have perused the pleadings. Briefly this is what is brought out, the Applicant depones that he did not sell 8 acres to the 1st Defendant. However by a subdivision undertaken by the 1st Defendant, he acquired 8 acres of the suit land. The origin of this case is execution of an award given by Webuye Land Disputes Tribunal which awarded the 1st Respondent land measuring 0. 41ha. In his replying affidavit, the 1st Respondent annexed a sale agreement showing the applicant sold a portion of the land L.R. Ndivisi/Makuselwa/377 measuring 0. 41 ha (1. 08 acres).
The copies of official searches annexed to the supporting affidavit reveals the resultant nos from the subdivision Ndivisi/Makuselwa/2235 measuring 1. 0 ha, L.R. Nos. 2232 measuring 1. 4 ha and L.R. No. 2234 measuring 0. 6 ha, are all registered in the name of BENSON WANYAMA NALWA – 1st Defendant. This is in contradiction to 1. 08 acres of land he purchased and awarded to him by the tribunal. On the basis of the annexed documents, I find the Applicant has established a prima facie case with chances of success. Consequently i find the application has merit and allow prayer 4 thereof. The costs of the application is awarded to the Applicant.
RULING DATED, SIGNED AND DELIVERED in open court this 5th day of November, 2013.
A. OMOLLO
JUDGE.a