[2018] KEELC 2221 (KLR)
The court found that the parties presented contradictory accounts regarding possession and occupation of the suit land, with the applicant alleging long-term occupation and the respondent asserting lawful purchase and subsequent possession. Given the conflicting evidence and the need for a full hearing to resolve...
Source-derived case information.
- Citation
- [2018] KEELC 2221 (KLR)
- Parties
- Plaintiff: Kiminisi Ole Ngenda; Defendant: Matayia Kantai; Defendant: Neiyo Kantai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Cause 366 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application for Injunction
- Outcome
- Status quo order granted; interlocutory injunction declined.
- Judges
- MN Kullow
- Legal Topics
- Adverse Possession, Injunctive Relief, Status Quo Orders, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kiminisi Ole Ngenda
Plaintiff
Matayia Kantai
Defendant
Neiyo Kantai
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant has established grounds for the grant of an interlocutory injunction restraining the defendants from interfering with the suit land pending determination of the suit.
- 2 Whether the status quo as at the date of the ruling should be maintained until the suit is heard and determined.
Ratio Decidendi
The court found that the parties presented contradictory accounts regarding possession and occupation of the suit land, with the applicant alleging long-term occupation and the respondent asserting lawful purchase and subsequent possession. Given the conflicting evidence and the need for a full hearing to resolve the substantive issues, the court determined that it would be prudent to maintain the status quo as at the date of the ruling. The court declined to grant the interlocutory injunction sought by the applicant but ordered that the existing state of affairs be preserved until the suit is heard and determined on its merits.
Court Disposition
Status quo order granted; interlocutory injunction declined.
Orders
- The status quo as at the date of this ruling regarding LR TRANS MARA/MOITA/503 shall be maintained pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 366 OF 2017
FORMERLY KISII ELC NO. 150 OF 2013
KIMINISI OLE NGENDA.........................................................PLAINTIFF
VERSUS
MATAYIA KANTAI ........................................................1ST DEFENDANT
NEIYO KANTAI.............................................................2ND DEFENDANT
RULING
The Application before me is the Notice of Motion dated 11th November, 2017 brought under the provision of section 1A,3,3A and 63( C) of the Civil Procedure Act and Order 40 Rule (1) and order 51Rule (1) of the Civil procedure Rules where the Applicants seek pending the hearing and determination of the suit herein an order of injunction do issue restraining the Defendant by himself, and/or employees from grazing animals, cultivating or disposing or in any manner dealing with the Applicants use of LR TRANS MARA/MOITA/503 and in the alternative an order of status quo which obtained as at 28th June, 2012 when Kisii HCCC No. 226 of 2012 (OS) which suit was consolidated with the suit herein be maintained pending the hearing and determination of this suit.
The Application was based on the ground that the Applicants had filed a suit on 28th June, 2012 at Kisi High Court claiming ownership of LR Trans Mara/Moita/503 by way of adverse possession against John R. Mutethia who was the registered owner but never took possession.
The suit land herein was sold to the Respondent by John R. Mutethia but he could not take possession since the Applicants were in exclusive possession and that the Respondent has been attempting to evict the Applicants alleging that they have refused the Respondent from taking possession and prosecute an exparte Judgement in Kisii HCCC No. 150 of 2015 has been set aside and the suit transferred to the court for hearing and in view of the foregoing the Respondent has been trying to evict the Applicants from the suit land.
The Application was further supported by the Affidavit of the 1st Applicant who averred that he has been living exclusively on the suit land since 1981 and that his father who also lived on the land is buried thereon. He further avers that the suit land was sold to the present owner on 21st November, 2012 without their knowledge and he wants to evict them from the land.
The Applicant further contends that the exparte Judgment that the Applicant obtained which he wanted to use to evict them has since been set aside and despite the above the Respondent has been forcefully grazing his cattle on the suit land.
The Application was opposed by the Respondent who filed a replying affidavit. The Respondent avers that on 21st November, 2012 he entered into a sale agreement for the purchase of the suit land from one John Renson Mutethia for a consideration of kshs. 1,800,000/- and that the aforesaid John Renson Mutethia caused the suit to be transferred to him and he took possession of the suit property.
The Respondent stated that sometime in February 2013 the Defendants/Applicants herein trespassed on the suit land and commenced cultivating and that the Applicants act aforesaid has deprived him of the use of the land.
I have read the application before me and the issue for determination before me is whether the Applicant has established the grounds for the grant of an order of injunction. The Applicant alleges that he has been in occupation and possession of the suit land since 1981 and that his father is buried thereon. The Respondent also contends that he purchased the land on 21st November, 2012 and it was only in February, 2013 that the Applicants trespassed on the land.
From the pleading filed and the various contradictive portion that the parties have shown I find that the issues raised as issues that can only be determined at full hearing where evidence will be taken. In the meantime I will take the safe option that the status quo in the matter as to the date of the delivery of this Ruling herein be maintained.
DATED, SIGNED and DELIVERED in open court atNAROKon this27thday ofJuly, 2018.
Mohammed Noor Kullow
Judge
27/7/18
In the presence of:
Mr Sagwe holding brief for Mr. Ogutu for the Plaintiff
N/A for the Defendants
CA:Chuma
Mohammed Noor Kullow
Judge
27/7/18