[2016] KEELC 1044 (KLR)
The court held that the Defendants, as registered proprietors of plot number 44 Mambrui, retain legal ownership until the court determines otherwise in the main suit. The Plaintiff's claim for adverse possession and reference to an agreement dated 30th November 2010 could only be resolved at trial. By filing suit...
Source-derived case information.
- Citation
- [2016] KEELC 1044 (KLR)
- Parties
- Plaintiff: Kadenge Duka Ndege; Defendant: Zaid Bin Ahmed Bin Said Naji; Defendant: Zeid Ahmed Said
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2011
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Applications for Injunction and Burial Rights Pending Determination of Adverse Possession Claim
- Outcome
- Defendants' application for injunction allowed; Plaintiff's application dismissed with costs.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Injunctive Relief, Burial Rights, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kadenge Duka Ndege
Plaintiff
Zaid Bin Ahmed Bin Said Naji
Defendant
Zeid Ahmed Said
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Applications for Injunction and Burial Rights Pending Determination of Adverse Possession Claim
Legal Issues
- 1 Whether the Plaintiff is entitled to bury his late mother on the disputed portion of plot number 44 Mambrui pending determination of the suit.
- 2 Whether the Plaintiff can rely on an agreement dated 30th November 2010 to claim a portion of the suit property after filing suit for the entire property.
- 3 Whether the Defendants are entitled to an injunction restraining the Plaintiff from burying any family member on the suit property before the ownership dispute is resolved.
Ratio Decidendi
The court held that the Defendants, as registered proprietors of plot number 44 Mambrui, retain legal ownership until the court determines otherwise in the main suit. The Plaintiff's claim for adverse possession and reference to an agreement dated 30th November 2010 could only be resolved at trial. By filing suit for the entire property, the Plaintiff repudiated the agreement and could not rely on it for interim relief. The court found that allowing the Plaintiff to bury his late mother on the disputed land would prejudice the Defendants' proprietary rights before the ownership issue is resolved. Accordingly, the Defendants' application for an injunction was allowed, restraining the...
Court Disposition
Defendants' application for injunction allowed; Plaintiff's application dismissed with costs.
Orders
- An injunction is issued restraining the Plaintiff, his agents, servants, or any other person claiming through him from burying the remains of the Plaintiff's late mother or any other member of the Plaintiff's family on plot number 44 Mambrui pending determination of the suit.
- The OCS Marereni police station is directed to ensure compliance with these orders.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC 3 OF 2011 (0S)
IN THE MATTER OF: PORTION NO. 3 OF 2011 (OS)
AND
IN THE MATTER OF: LIMITATION OF ACTIONS ACT CAP 22, LAWS OF KENYA
AND
IN THE MATTER OF: AN APPLICATION FOR DECLARATION THAT THE PLAINTIFF HAS OBTAINED TITLE OVER THE SAID PARCEL OF LAND BY ADVERSE POSSESSION
KADENGE DUKA NDEGE....................................................PLAINTIFF/RESPONDENT
=VERSUS=
ZAID BIN AHMED BIN SAID NAJI................................1ST DEFENDANT/APPLICANT
ZEID AHMED SAID..........................................................2ND DEFENDANT/APPLICANT
R U L I N G
1. This suit was commenced by the Plaintiff by way of an Originating Summons.
2. In the suit, the Plaintiff is seeking to be declared as proprietor of land within portion number 44 Malindi by adverse possession. The suit is partly heard by Meoli J.
3. The Defendant has filed an Application dated 9th March, 2016 in which he is seeking for the following orders:-
(a) THAT pending the hearing and determination of this suit an injunction be issued restraining the Plaintiff by himself, agents, servants and any other person claiming interest through him from burying the remains of the Plaintiff's late mother or any other member of the Plaintiff's family on plot NO. 44 Mambrui belonging to the Defendant herein.
(b) THAT the OCS Marereni police station be directed to ensure compliance of the orders herein.
(c) That costs of this Application be provided for.
4. The Application is premised on the grounds that as long as the issue of ownership has not been determined, the Plaintiff's mother cannot be buried on the suit property and that the suit land belongs to the Defendant.
5. In response to the Application for interim orders of injunction, the Plaintiff filed an Application dated 18th March, 2016 in which he sought to set aside the injunctive orders that were granted exparte.
6. In the said Application, the Plaintiff sought for an order allowing him to bury the deceased within the portion of plot No. 44 measuring 60 meters by 150 meters.
7. According to the Plaintiff's Affidavit, his family's graveyard is within the undisputed portion measuring 60 meters by 150 meters; that he does not have any other known home to bury his late mother and that the undisputed area is where he has buried his other family members.
8. In response to the Plaintiff''s Application, the Defendants' deponed that the Plaintiff resides in Gongoni and therefore cannot claim that he has nowhere else to bury his mother.
9. The parties appeared before me on 23rd March, 2016 and made oral submissions. I have considered the said submissions.
10. It is not in dispute that the Defendant is the registered proprietor of plot number 44 Mambrui.
11. The issue of whether the Plaintiff is entitled to a portion of the suit property by virtue of the doctrine of adverse possession can only be determined after trial. In the meantime, the holder of the title document remains the legal owner.
12. Although the Plaintiff's advocate submitted that the Defendant had agreed to give to the Plaintiff the land that the Plaintiff was occupying vide an agreement of 30th November 2010, it is the Plaintiff who filed this suit after the purported agreement claiming for the entire suit property.
13. Consequently, the Plaintiff cannot rely on the agreement of 30th November, 2010 having rejected it by the filing of this suit.
14. Until the status of the beneficial owner of plot number 44 is ascertained by this court, the Plaintiff cannot bury the remains of his late mother on the suit property. The Defendant is the legal owner of the suit property until the court declares, if at all, that the Plaintiff is entitled to it under the doctrine of adverse possession.
15. For those reasons, I allow the Defendants' Application dated 9th March, 2016 and dismiss the Plaintiff's Application dated 18th March, 2016 with costs.
Dated and delivered in Malindi this 1st day of April, 2016.
O. A. Angote
Judge