[2010] KEHC 1920 (KLR)
The court found that the land in question is registered in the name of the plaintiff/respondent, John Muhatia Okot, and that such registration is conclusive evidence of ownership under section 27 of the Registered Land Act. There was no evidence presented by the defendant/applicant to rebut this presumption of...
Source-derived case information.
- Citation
- [2010] KEHC 1920 (KLR)
- Parties
- Plaintiff: John Muhatia; Defendant: Joash Shivukale
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Injunction
- Outcome
- application dismissed with costs to the respondent
- Judges
- CA Ombija
- Legal Topics
- Injunctions, Land Registration, Res Judicata, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muhatia
Plaintiff
Joash Shivukale
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Injunction
Legal Issues
- 1 Whether the injunction order issued on 19th March, 2009 should be set aside.
- 2 Whether the defendant/applicant has established grounds to warrant the setting aside of the injunction.
- 3 Whether the suit is res judicata in light of the decree in Kitale land case No. 62 of 2007.
Ratio Decidendi
The court found that the land in question is registered in the name of the plaintiff/respondent, John Muhatia Okot, and that such registration is conclusive evidence of ownership under section 27 of the Registered Land Act. There was no evidence presented by the defendant/applicant to rebut this presumption of ownership. The court further noted that the issues raised by the applicant had already been addressed in previous proceedings and applications, and that the current application was a duplication and an abuse of the court process. Consequently, the court held that the temporary injunction issued against the defendant/applicant stands, and the application to set aside the injunction...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the injunction order issued on 19th March, 2009 is dismissed.
- The temporary injunction against the defendant/applicant stands.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Civil Suit 2 of 2009
JOHN MUHATIA.........................................PLAINTIFF
VERSUS
JOASH SHIVUKALE..............................DEFENDANT
RULING
By a Notice of Motion dated 8th May, 2010 pursuant to the provisions of order XXXIX Rule 4 of the Civil Procedure Rules (Cap 21) Laws of Kenya the applicant seeks orders:
1. THAT this application be certified as urgent to be heard ex-parte in the first instance.
2. THAT this honourable Court be pleased to set aside the injunction orders issued on 19th March, 2009.
3. THAT in the meantime and pending hearing of this application inter-partes there be an order staying implementation of the injunction orders issued on 19th March, 2009.
4. Costs be provided for
The application is based on the grounds:
(a)THAT the injunction orders are punitive as against the defendant/applicant.
(b)THAT the defendant/applicant has always resided on and utilized the parcel of land.
(c)THAT there is a valid decree which has not been set aside.
The application is predicated upon the annexed affidavit of Joash Shikuvalesworn on the 8th day of May, 2010.
On behalf of the applicant/defendant, it was argued that an injunction order restraining the applicant from utilizing the suit land was issued by this court on 19th March, 2009. A copy of the said order is exhibited as “JS1”.
Before this suit was filed a decree had been issued in his favour in Kitale land case No. 62/07. A copy of the decree is exhibited as “JS 2”.
An attempt to vary the decree was made by the plaintiff/respondent vide an application dated 6/8/2006 which application was ultimately dismissed.A copy of the application is exhibited as “JS 3”
On 5th March, 2009, the decree of the lowercourt was executed and survey done in accordance with the decree. A copy of a letter inviting the parties to attend by the surveyor is exhibited as “JS 4”.
Arisingfrom the survey work, there are now distinct boundaries of 1. 26 acres each.However, by reason of the injunction order herein the plaintiff/respondent has been denied the use of the land and threatened with demolition of her house.
Last but not least, that he has resided in the land with the plaintiff since thepurchase of the same and hence the plaintiff holds the land in trust for himself and hisbrother. That, he contends, was based on the decision of the Tribunal -Copies of the proceedings are exhibited as “JS 5”.
In the premises, the applicant contends that the decree in Kitale land case No. 62 of 2007 renders this suit res-judicata That injunctionorders sought ought not to have been issued therefor.
The respondent/plaintiff, John Muhatia, opposed the application by filing a replying affidavit sworn on 18th May, 2010.
It was the respondent/plaintiff contention the application is a duplication. The same issuesraised herein were raised in the supportingaffidavit sworn on 8th May 2001 supporting the present application. Precisely in the replying affidavit sworn on 16th March, 2010 at Paragraph 4, 5, 6 and 7, the applicant herein raised the same issue.
The ruling of the court dated and delivered on 31st March, 2010 is evidence that Parcel No. Kwanza/Kwanza/Block 4/KOROSS/271 is registered in the name of John Muhatia Okot.Accordingly, by dint of section 29 of the Registered Land Act (Cap 300) Laws of Kenya, he is the absolute proprietor of the subject parcel.Accordingly, the injunction was properly confirmed hence this application is frivolous, vexatious and abuse of the court process.
I have carefully analyzed the evidence for and against the application. It is clear to me that the land is registered in the names of John Mahatia Okot , the plaintiff/respondent herein.It is worth repeating that such registration is conclusive evidence of ownership in terms of section 27 of the Registered Land Act (Cap 300) Laws of Kenya.There is no evidence in rebuttal on the basis of which I would find to the contrary.Accordingly, the temporary injunction issued against the defendant/applicant stands.The application iswithout merit. It is accordingly the same is dismissed with costs to the respondent/defendant.It is so ordered.
Dated and declared at Kitale this 28thday of June,2010
N R O OMBIJA
JUDGE
N A for plaintiff
N A for defendant