[2013] KEHC 2314 (KLR)
The court found that the applicant's apprehension that the land parcels may change hands if a temporary injunction is not granted is reasonable. Given that there is an existing restriction on the title and a related application by the respondent to vacate the restriction is pending, the balance of convenience favors...
Source-derived case information.
- Citation
- [2013] KEHC 2314 (KLR)
- Parties
- Applicant: Dr. Julia Ojiambo; Respondent: Morris Oduori Were
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 58 of 2013
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Temporary injunction granted in favor of the applicant pending determination of the suit.
- Legal Topics
- Temporary Injunctions, Land Title Disputes, Restrictions on Land, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Julia Ojiambo
Applicant
Morris Oduori Were
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from interfering with land parcels Samia/Bujwanga/1991 and 1998 pending determination of the suit.
- 2 Whether the balance of convenience favors the grant of the injunction.
Ratio Decidendi
The court found that the applicant's apprehension that the land parcels may change hands if a temporary injunction is not granted is reasonable. Given that there is an existing restriction on the title and a related application by the respondent to vacate the restriction is pending, the balance of convenience favors granting the injunction to preserve the subject matter. The court therefore granted the temporary injunction as prayed, pending the hearing and determination of the main suit.
Court Disposition
Temporary injunction granted in favor of the applicant pending determination of the suit.
Orders
- A temporary injunction is issued restraining the respondent from interfering with land parcels Samia/Bujwanga/1991 and 1998 pending hearing and determination of the suit.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA.
IN THE LAND AND EVNIRONMENT COURT AT BUSIA.
CIVIL SUIT NO. 58 OF 2013.
IN THE MATTER OF THE REGISTERED LAND PARCEL NUMBER.
SAMIA/BUJWANGA/1991 & 1998.
AND
IN THE MATTER OF LIMITATION OF ACTIONS.
ACT CAP 22 LAWS OF KENYA
AND IN THE MATTER OF THE LAND REGISTRATION ACT
BETWEEN.
DR. JULIA OJIAMBO …………………………………………………………..APPLICANT
VERSUS
MORRIS ODUORI WERE ………………………………………………… RESPONDENT
R U L I N G.
The Applicant, Dr. Julia Ojiambo, through M/S. Balongo & co. Advocates, filed the notice of motion under certificate of urgency dated 18th July, 2013 with the main prayer being a temporary injunction stopping the respondent, Morris Oduori Were, from interfering with land parcels Samia Bujwanga/1991 and 1998. The application is opposed by the respondent who through M/S. Makokha Wattanga & Luyali Advocates, filed a replying affidavit sworn on 24th July, 2013.
During the interparties hearing of the application, Mr. Jumba and Mr.Watanga Advocates appeared for the applicant and respondent respectively and made their submissions.The court has carefully considered the submissions by counsel and the contents of the supporting and replying affidavits and find as follows;
That land parcel No.Samia/Bujwanga/1991 was registered in the names of the respondent, Morris Oduori Were on 15th July, 1998. The copy of the certificate of official search in respect of the said land attached to the replying affidavit and marked MOW 1 shows a restriction on the title has been filed with lands office by the applicant pending the resolution of some disputes. This parcel of land and parcel 1998 are sub-divisions from land parcel Samia/Bujwanga/959.
That from the annexture to the replying affidavit marked MOW 2 it is quite clear that the respondent herein had filed Busia High Court Misc. App. No. 133 of 2013 against the applicant herein, seeking to have the restriction placed on land parcel Samia/Bujwanga/1991 vacated. The said application is still pending for hearing.
That from the submissions by counsel for the applicant and the contents of the supporting affidavit, the applicant is apprehensive that the two parcels of land subject matter to this application is likely to change hands if the temporary injunction is not issued. This seems to be a reasonable concern which cannot be ignored by the court in view of the prayers in the originating summons.
From the foregoing, the court finds that on the balance of convenience, the applicant deserves the order so as to conserve the subject matter of this suit awaiting the hearing and determination of the case. As such prayer (b) of the application dated 18th July, 2013 is granted with costs in the cause.
S. M. KIBUNJA,
JUDGE.
Delivered on 19th September, 2013.