[2012] KEHC 2130 (KLR)
The court found that while the applicant produced a copy of title and transfer indicating ownership in common with Ogendi Sagwe, the nexus between the applicant and the defendants (who are Sagwe's sons and tenants) was not clearly demonstrated in the submissions. The defendants are in actual possession and have...
Source-derived case information.
- Citation
- [2012] KEHC 2130 (KLR)
- Parties
- Plaintiff: Johnstone Nyangweso Masongo; Defendant: Philip Onyari Ogendi; Defendant: George Mokoro Ogendi; Defendant: Philip Nyaigero Ogendi; Defendant: Omambia Makenzi; Defendant: Mong’are Ongeko; Defendant: Evans Sagwe Nyong’a
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 200 of 2011
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction declined; status quo order granted.
- Legal Topics
- Injunctive Relief, Ownership Dispute, Trespass, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnstone Nyangweso Masongo
Plaintiff
Philip Onyari Ogendi
Defendant
George Mokoro Ogendi
Defendant
Philip Nyaigero Ogendi
Defendant
Omambia Makenzi
Defendant
Mong’are Ongeko
Defendant
Evans Sagwe Nyong’a
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for the grant of an interlocutory injunction.
- 2 Whether the balance of convenience favors the grant or refusal of the injunction.
- 3 Whether the applicant is the registered owner of the suit property.
Ratio Decidendi
The court found that while the applicant produced a copy of title and transfer indicating ownership in common with Ogendi Sagwe, the nexus between the applicant and the defendants (who are Sagwe's sons and tenants) was not clearly demonstrated in the submissions. The defendants are in actual possession and have undertaken developments on the property. The balance of convenience, therefore, does not favor granting an injunction. However, to preserve the property and in the interest of justice, the court ordered that the status quo be maintained, prohibiting further alienation, transfer, or sale of the suit land pending the hearing and determination of the main suit.
Court Disposition
Interlocutory injunction declined; status quo order granted.
Orders
- The application for an interlocutory injunction is declined.
- Status quo to be maintained; no further alienation, transfer, or sale of the suit land pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
JOHNSTONE NYANGWESO MASONGO......................PLAINTIFF
-VERSUS-
PHILIP ONYARI OGENDI
GEORGE MOKORO OGENDI
PHILIP NYAIGERO OGENDI
OMAMBIA MAKENZI
MONG’ARE ONGEKO
EVANS SAGWE NYONG’A ................................... DEFENDANTS
RULING
The applicant has filed the present application seeking orders;
1. That this application be certified urgent and fit to be heard exparte in the first instance.
2. That pending the hearing and determination of this application, the defendants either by themselves, their servants, agents or otherwise be and are hereby restrained by an injunction from selling, alienating, subdividing, trespassing or from any other way interfering with parcel of land known as Plot L.R. No. 8805-Ikonge Trading Centre.
3. That pending the hearing and determination of this suit, the Defendants either by themselves, their servants, agents or otherwise be and are hereby restrained by an injunction from selling, alienating, subdividing, trespassing or from any other way interfering with the parcel of land known as Plot No. LR No. 8805-Ikonge Trading Centre.
4. That the cost of this application be provided for.
The application is premised on the grounds that the respondents have trespassed on the suit land which is the property of the applicants and are erecting structures thereon. The applicant is said to have bought the suit land measuring 0. 01182 acres from one Nelson Ndubi at a consideration of Kshs.20,000/= and a transfer was registered on 22nd July 1970. In 2010 the 1st, 2nd and 3rd defendants proceeded to dispose of the suit land to the 4th, 5th and 6th defendants.
The application is opposed by the respondents who have deponed that the applicant is not the registered owner ofPlot No. LR No. 8805 at Ikonge Trading Centre and that the same belongs to the County Council of Nyamira.
Parties consented to canvass the application through written submissions which they duly filed and exchanged. I have carefully considered the submissions along with the authority filed by the respondents. The applicant has displayed a copy of title and transfer which shows ownership in common of the suit land by Johnstone Nyangweso Mosongo who is the applicant and one Ogendi Sagwe. The pleadings show that the 1st, 2nd and 3rd defendants are Ogendi Sagwe’s sons while the 4th, 5th and 6th defendants are tenants on the suit property. Prima facie, there is a nexus in ownership between the applicant and 1st, 2nd and 3rd defendants through the interest in the suit land of Ogendi Sagwe (now deceased).
Such nexus is not however clearly demonstrated in the respective submissions of the parties. For the present, it appears that the balance of convenience is against the grant of an injunction as the defendants have demonstrated that they are in actual possession of the suit property and have undertaken development thereon. See Giella vs Cassman Brown & Co. Ltd [1973] E.A. 358
I therefore decline to grant the order for injunction as prayed. In the interest of justice however, and in order to preserve the suit property, I order that status quo be maintained and that there be no further alienation, transfer or sale of the suit land pending the hearing and determination of the suit herein. Costs will abide the outcome of the suit.
Ruling dated, signedand delivered at Kisii this 23rd day of August, 2012.
R. LAGAT-KORIR
JUDGE
In the presence of :
Edwin Mongare Court clerk
.............................Counsel for the plaintiffs/Applicants
.............................Counsel for the defendants/respondents
R. LAGAT-KORIR
JUDGE