[2016] KEHC 3979 (KLR)
The court determined that the substantive issues regarding occupation, matrimonial property rights, and alleged sales of the suit land cannot be resolved at the interlocutory stage without a full hearing. To avoid prejudicing any party and to preserve the subject matter, the court ordered that the status quo be...
Source-derived case information.
- Citation
- [2016] KEHC 3979 (KLR)
- Parties
- Plaintiff: Joseph Mukonye Gibendi; Defendant: Vincent Chole Mukonye; Defendant: Aswani Adagala Mukonye; Applicant: Truphena E. Mukonye
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 90 of 2015
- Procedural Posture
- Land Case / Interlocutory Application Ruling
- Outcome
- Status quo order granted; interested party joined; suit to proceed to hearing.
- Legal Topics
- Matrimonial Property, Status Quo Orders, Joinder of Parties, Overriding Interest, Trespass, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mukonye Gibendi
Plaintiff
Vincent Chole Mukonye
Defendant
Aswani Adagala Mukonye
Defendant
Truphena E. Mukonye
Applicant
Procedural Posture
Land Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendants and their mother, the applicant as interested party, reside on the suit land East Bukusu/South Nalondo/4693.
- 2 Whether the suit land constitutes matrimonial property and if the interested party has an overriding interest in it.
- 3 Whether the plaintiff has sold portions of the suit land to third parties and if the defendants have prevented access to the purchasers.
Ratio Decidendi
The court determined that the substantive issues regarding occupation, matrimonial property rights, and alleged sales of the suit land cannot be resolved at the interlocutory stage without a full hearing. To avoid prejudicing any party and to preserve the subject matter, the court ordered that the status quo be maintained. Additionally, the court found it appropriate to join Truphena E. Mukonye as a party to the suit to ensure all interests are represented and the dispute is comprehensively adjudicated at trial.
Court Disposition
Status quo order granted; interested party joined; suit to proceed to hearing.
Orders
- The status quo obtaining in land parcel East Bukusu/S.Nalondo/4693 be maintained pending the hearing of this suit.
- Truphena E. Mukonye is made a party to this suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 90 OF 2015
JOSEPH MUKONYE GIBENDI ……………………………….PLAINTIFF
VERSUS
VINCENT CHOLE MUKONYE………………………….1ST DEFENDANT
ASWANI ADAGALA MUKONYE ………………………2ND DEFENDANT
RULING
[1] Two applications were filed in this case. An application dated 13th July 2015 by the plaintiff praying for orders that the respondents be restrained by themselves, their servants and agents from trespassing and occupying Title Number east Bukusu/South Nalondo/4693 pending the hearing of this suit.
[2] A further application dated 28/7/2015 is by Truphena E. Mukonye praying that she be made an interested party on the ground that she is the biological mother of the defendants and the wife of the plaintiff. She claims the land to be a matrimonial property.
[3] The interested party alleges that the plaintiff has sold a portion out of the said land of 0. 5 ha to Moureen Nasambu Simiyu and a portion of 50 x 100 feet to Moses Kusimba Wamalwa. It is alleged that the defendants have prevented access of the said purchasers from the said land.
[4] The plaintiff denies the allegation of the interested party. He swore a relying affidavit that the interested party stays on East Bukusu/South Nalondo/4690 with all her children. That she does not stay on East Bukusu/South Nalondo/4693 the subject matter hereof. That the interested party has not established that she lives on East Bukusu/South Nalondo/4690 and that her application fails.
[5] There is no doubt the issues in the suit and the application, is whether the defendants and their mother, the applicant as interested party do stay and live on the suit land East Bukusu/S. Nalondo/1493. Further, the other question will be whether the suit land is a matrimonial home of the plaintiff interested party and therefore whether there is an overriding interest on the said land as far as the interested party is concerned.
These issues cannot be determined at this stage. Determining them would be tantamount to determining this suit through interlocutory applications. The suit itself must be fixed for hearing and the same be heard on merits.
[6] The court therefore makes the following orders:
(a) That the status quo obtaining in land parcel East Bukusu/S.Nalondo/4693 be maintained pending the hearing of this suit.
(b) Truphena E. Mukonye is made a party to this suit.
(c) This suit shall be fixed for hearing on merits by the parties.
Dated, Signed and delivered at Bungoma this 27th July day of 2016.
S.MUKUNYA JUDGE
In the presence of
Court Assistants - Gladys/Joy
Mrs. Murambe for Bw’Onchiri for the Plaintiff
Mr. Milimo for the Defendant – absent