[2013] KEELRC 284 (KLR)
The court found that the plaintiff/applicant had established a valid and enforceable interest in the suit property, L.R. No. MUTIRA/KATHARE/114, arising from an agreement with the defendant/respondent's father, which was binding on successors and heirs. The subsequent registration of the property in the...
Source-derived case information.
- Citation
- [2013] KEELRC 284 (KLR)
- Parties
- Plaintiff: Johnson Muriithi Kinyua; Defendant: Leonard Muchiri Mutugi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2012
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application for Prohibitory Order
- Outcome
- Application allowed; prohibitory order granted.
- Legal Topics
- Fraudulent Registration, Land Security for Debt, Prohibitory Orders, Succession and Heirs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Muriithi Kinyua
Plaintiff
Leonard Muchiri Mutugi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application for Prohibitory Order
Legal Issues
- 1 Whether the plaintiff/applicant is entitled to a prohibitory order over L.R. No. MUTIRA/KATHARE/114 pending determination of the suit.
- 2 Whether the registration of the suit property in the defendant/respondent's name was fraudulent.
- 3 Whether the agreement between the plaintiff/applicant and the defendant/respondent's father creates a valid interest in the suit land.
Ratio Decidendi
The court found that the plaintiff/applicant had established a valid and enforceable interest in the suit property, L.R. No. MUTIRA/KATHARE/114, arising from an agreement with the defendant/respondent's father, which was binding on successors and heirs. The subsequent registration of the property in the defendant/respondent's name was tainted by fraud, as evidenced by the defendant/respondent's criminal conviction. The court held that it was just and equitable to grant a prohibitory order to preserve the subject matter of the suit pending its determination, as the applicant's interest would otherwise be prejudiced. The court also encouraged the parties to consider an amicable settlement,...
Court Disposition
Application allowed; prohibitory order granted.
Orders
- A prohibitory order is hereby issued over L.R. No. MUTIRA/KATHARE/114 pending the hearing and determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Kerugoya
Environmental & Land Case 35 of 2012 [if gte mso 9]><xml>
14. 00
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JOHNSON hhhMURIITHI KINYUA..................................PLAINTIFF
VERSUS
LEONARD MUCHIRI MUTUGI.....................................DEFENDANT
RULING
This is in respect of the applicant’s application dated 26th November, 2012 seeking a prohibitory order on L.R. No. MUTIRA/KATHARE/114.
I have considered the application together with the rival affidavits and submissions herein.
What comes out clearly from the annextures herein is that indeed there was an agreement between the plaintiff/applicant and one MUTUGI KABUTU who is the defendant/respondent’s father whereby the deceased borrowed some Ksh. 25,000/= from the plaintiff/applicant and offered as security land parcel No. MUTIRA/KATHARE/738 which would be transferred to the plaintiff/applicant incase of default. The defendant/applicant later had all the deceased’s properties combined and registered as L.R. No. MUTIRA/KATHARE/114 which process was done fraudulently and for which the defendant/respondent was charged in Kerugoya Senior Principal Magistrate Criminal case No. 1050 of 2010, convicted and placed on probation. This conviction is, in my view, relevant as it touches on the subject matter of this case.
Having considered all the above, I find that the applicant is entitled to the orders sought in this Notice of Motion dated 26th November 2012. There isun-rebutted evidence that on 9th June 2000, the plaintiff/applicant and the defendant/respondent’s father (now deceased) entered into agreement that land parcel No. MUTIRA/KATHARE/738 would be transferred to the plaintiff/applicant should there be a default in repayment of a loan of Ksh. 25,000/=.The agreement was to bind not only the defendant/respondent’s father but also his successors, heirs and assigns. Clearly, the plaintiff/applicant has a valid interest in the land parcel No. MUTIRA/KATHARE/114 which ought to be protected until this suit is heard and determined. Looking at the pleadings herein, this is a matter that perhaps the Advocates on record should consider advising their clients to reach some amicable settlement. I think substantial justice will be done if that route is taken. The court will also play its role in that direction at the appropriate time.
For now, the application dated 26th November, 2012 is allowed. Costs in the cause
B.N. OLAO
JUDGE
15/4/2013
15/4/2013
BeforeB.N. OLAO – JUDGE
CC – Muriithi
Mr. Kahiga for Nganga for Applicant – present
Respondent – present in person
COURT:Ruling delivered this 15th April 2013 in open Court.
B.N. OLAO
JUDGE
15/4/2012
COURT :Further mention on 14/5/2013 as the parties have agreed to my suggestion to settle matter amicably.
B.N. OLAO
JUDGE
15/4/2013