[2013] KEHC 1653 (KLR)
The court found that there was no dispute that the original land parcel Kwale/Ukunda/1916 was subdivided into parcels 4546 and 4547, and that both the applicants and respondent claim ownership through different titles. Given the existence of competing titles and the fact that the applicants are in possession and...
Source-derived case information.
- Citation
- [2013] KEHC 1653 (KLR)
- Parties
- Applicant: John Robert Quince; Applicant: Jabu Katana; Applicant: Christine Ann Mahoney; Applicant: Becken Charity Project; Respondent: Sudi Ali Mwaropia
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 33 of 2013
- Procedural Posture
- Civil Suit / Interlocutory Application for Injunction/status Quo Pending Hearing
- Outcome
- Interlocutory application allowed; status quo to be maintained pending hearing of the suit.
- Judges
- SN Mukunya
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Title Registration, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Robert Quince
Applicant
Jabu Katana
Applicant
Christine Ann Mahoney
Applicant
Becken Charity Project
Applicant
Sudi Ali Mwaropia
Respondent
Procedural Posture
Civil Suit / Interlocutory Application for Injunction/status Quo Pending Hearing
Legal Issues
- 1 Whether the applicants are entitled to an order maintaining status quo over Plot No. Kwale/Ukunda/4546 pending the hearing of the main suit.
- 2 Whether the applicants have demonstrated a prima facie case with a probability of success to warrant injunctive relief.
- 3 Whether the subdivision and registration of the suit property was lawful and which party holds a valid title.
Ratio Decidendi
The court found that there was no dispute that the original land parcel Kwale/Ukunda/1916 was subdivided into parcels 4546 and 4547, and that both the applicants and respondent claim ownership through different titles. Given the existence of competing titles and the fact that the applicants are in possession and have made developments on the suit property, the court determined that the appropriate course was to maintain the status quo to prevent further interference or prejudice to either party pending the hearing and determination of the main suit. The court emphasized that the substantive issues regarding the validity of the titles and the lawfulness of the subdivision would be...
Court Disposition
Interlocutory application allowed; status quo to be maintained pending hearing of the suit.
Orders
- Prayers 2, 3, and 4 of the application are granted.
- Status quo to be maintained pending the hearing of the suit.
Full Case Text
Judgment text and source record
27 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 33 OF 2013
JOHN ROBERT QUINCE
JABU KATANA
CHRISTINE ANN MAHONEYbeing officials of
BECKEN CHARITY PROJECT...........................PLAINTIFFS/APPLICANTS
- V E R S U S -
SUDI ALI MWAROPIA ................................... DEFENDANT/RESPONDENT
RULING
[1] The applicant brings this application praying for status quo pending the hearing of the main suit to restrain the defendant by himself, his servants, employees and agents from entering upon, interfering with and/or having dealings of adverse nature with the piece of land situated in Ukunda Township known as Plot No. Kwale/Ukunda/4546. The application was supported by the affidavit of Jabu Katana who swore an affidavit on 11th February, 2013 and avered that he is the Treasurer of BECKEN CHARITY PROJECT a self help charitable group registered under the former Ministry of Gender, Children and Social Development. He avered that the said Charity Project is the registered owner of Plot No. Kwale Ukunda/4546. He annexed the sale documents therein. He avered that the said Charity Project is the registered owner of Plot No. Kwale Ukunda/4546. He annexed the sale documents therein. He avered that they were duly registered on 3rd October 2011. The said project took over and started to sink a borehole and construction of classrooms on the suit property.
He avers that the defendant came and purported to stop them from the developments and claimed ownership. He started filling up the bore hole with soil and went on a tree cutting spree on the suit premises prompting the applicant to bring this suit and application.
[2] The respondent on his part alleged the suit property was his and that he obtained Title Deed in 2005 as a result of a suit in the Msabweni Land Dispute Tribunal case No. 16 of 2003. He states that he was declared the owner of Plot No. KWALE/UKUNDA/1916. That land is now illegally subdivided into parcels 4546 and 4547 he annexed copies of the proceedings and judgment of that case. He avered that the applicants application and indeed the suit was devoid of merit, is scandalous, vexatious and and an abuse of the process of the court.
[3] There is no doubt that land parcel Kwale/Ukunda 1916 was subdivided to produce land parcels Kwale/Ukunda 4546 and 4547. There is also no doubt that the mother title Kwale/Ukunda/1916 has two titles. One in the names of Hassan Hassan Debe, Swaleh Omari Madonga, Musa Saidi Mwanaharusi, Ali Omari Mwasamuli, Fatuma Madonga and the other in the name of the defendant herein Sudi Ali Mwaropia. Evidence will have to be adduced as to which of the two titles is genuine and which registered proprietors is ( or was) genuine.
The applicants claim that land parcel Kwale/Ukunda/1916 was subdivided after the necessary subdivision and land control consent was obtained, and new titles issued as 4546 and 4547 and the original 1916 ceased to exist. But did it cease to exist? All these are issues that have to be canvassed at the hearing. The applicants are in a portion of what was Kwale/Ukunda/1916 i.e Kwale/Ukunda/4546 and have effected developments thereon. The Court is not informed who is on the other portion now known as Kwale/Ukunda/4547 or what is its fate.
The only reasonable thing under the circumstances is to have status quo maintained pending the hearing of this suit.
This Court therefore grants the applicant prayers 2,3 and 4 of his application. The Court further orders that status quo be maintained pending the hearing of this suit.
The cost of this application shall be in the suit.
Dated and delivered at Mombasa in open Court this 18th day of October, 2013.
S.N. MUKUNYA
JUDGE
18. 10. 2013
In the presence of:
Khatib Advocate for the plaintiffs/applicants
Koech Advocate for L. Mbatia Advocate for the defendant/respondent