[2013] KEHC 1639 (KLR)
The court found that the applicant failed to establish a prima facie case for the grant of an interlocutory injunction. The applicant did not demonstrate sufficient legal interest or locus standi in Plot 374, as he lacked letters of administration for his father's estate and the property was not registered in his...
Source-derived case information.
- Citation
- [2013] KEHC 1639 (KLR)
- Parties
- Applicant: Khamisi Tsanje Gogo Mungu; Respondent: Khamisi Muhambi Gogo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 113 of 2013
- Procedural Posture
- Land Case / Interlocutory Application (injunction)
- Outcome
- application dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Injunctions, Land Ownership, Title Disputes, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khamisi Tsanje Gogo Mungu
Applicant
Khamisi Muhambi Gogo
Respondent
Procedural Posture
Land Case / Interlocutory Application (injunction)
Legal Issues
- 1 Whether the applicant is entitled to a permanent and mandatory injunction restraining the respondent from entering or remaining on the suit properties.
- 2 Whether the applicant has locus standi to institute the suit regarding the suit properties.
- 3 Whether the applicant has established a prima facie case for the grant of interlocutory injunction.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case for the grant of an interlocutory injunction. The applicant did not demonstrate sufficient legal interest or locus standi in Plot 374, as he lacked letters of administration for his father's estate and the property was not registered in his name. The respondent's evidence regarding the family history and allocation of the plots was not sufficiently rebutted by the applicant. The court held that granting the orders sought would effectively determine the main suit at an interlocutory stage, which is impermissible. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 29th May, 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
LAND AND ENVIROMENT CASE NO. 113 OF 2013
KHAMISI TSANJE GOGO MUNGU ...................... PLAINTIFF/APPLICANT
- V E R S U S -
KHAMISI MUHAMBI GOGO .......................... DEFENDANT/RESPONDENT
RULING
{1} The applicant filed his application dated 29th May, 2013 and prayed for orders that a permanent injunction be issued against the defendant/respondent restraining them either by themselves, their servants and/or agents from entering into and/or remaining in the suit properties known as Kilifi/Chasimba/374 which is part and parcel of Kilifi/Chasimba/444 and committing any acts of trespass/or wastage howsoever thereon. He prayed for a mandatory injunction to be issued against the defendant restraining them by themselves and or servants and/or agents entering into and remaining on the suit properties aforesaid. He supported his application with his affidavit sworn on 29th May, 2013. In his affidavit he stated that they started to stay on the land parcel Kilifi/Chasimba/374 and the Kilifi/Chasimba/444 in 1960. That they stayed there up to year 2000 when the defendant obtained alternative title to land. He argued that they have been in occupation which has been open continuous and interrupted. That he has title for Kilifi/Chasimba/444 and 374 before the respondent obtained a fraudulent title of the same. That he has tried to resolve the matter to no avail.
[2] The respondent filed his replying affidavit on 10th June 2013. The respondent argued that he was the son of Muhambi Gogo deceased. That his father had four brothers Gogo Mwangala, Kombo Mwangala, Mumbu Kombo and Abdalla Mwangala who all lived in a large plot of land Plot No. 232 which was registered in the name of the respondents and applicants grandfather Gogo Mungu.
The fIve sons were granted plots as follows:-
Plot 374 - Gogo Mwangala
Plot 375 - Kombe Mwangala
Plot 373 - Mungu Kombo
Plot 372- Abdallah Mwangale
Plot 232 - Gogo Mungu
Gogo Mungu was the grandfather of the applicant. He sold a portion of Plot 232 to Francis Kaingu Mole. Two plots emanated therefrom as 444 and 445 comprising of 4. 97 ha and 1. 62 ha respectively. Plot no. 374 belonged to the father of the respondent and it was argued that the applicant has no reason to demand 374 for he has not lived there and it is not his.
It was argued that the applicant has no letters of administration of his fathers estate and has no locus to file the suit. That plot no. 444 is still in the applicants' fathers' name.
[3] I have perused the submissions by the applicant and the respondent and perused all the documents before me. I have no doubt that the applicant's application is unmerited. I find no reason to grant the prayers sought, As this application and the suit prays for the same thing, I hesitate to say more lest I determine the suit at an interlocutory stage.
I dismiss the application with costs.
Dated and delivered at Mombasa in -open court this 18th day of October, 2013.
S.N. MUKUNYA
JUDGE
18. 10. 2013
In the presence of
Anyumba Advocate for Mrs.Kipasang Advocate for the defendant/respondent
Applicant in person.