[2016] KEELC 54 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of inhibition and temporary injunction orders. The plaintiff demonstrated a legitimate interest in the suit properties, and there was a real risk that the defendant would dispose of or encumber the remaining parcels, thereby...
Source-derived case information.
- Citation
- [2016] KEELC 54 (KLR)
- Parties
- Plaintiff: Koome Samuel Mwiraria; Defendant: Nickson Mugambi Rucha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 220 of 2016
- Procedural Posture
- Environment and Land Suit / Ruling on Interlocutory Application for Inhibition and Injunction
- Outcome
- Application allowed in terms of prayers 3 and 5; costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Inhibition Orders, Temporary Injunctions, Land Disputes, Registration of Land, Fraudulent Transfer, Preservation of Property
- 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
Koome Samuel Mwiraria
Plaintiff
Nickson Mugambi Rucha
Defendant
Procedural Posture
Environment and Land Suit / Ruling on Interlocutory Application for Inhibition and Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of inhibition and temporary injunction orders over the suit properties.
- 2 Whether the defendant should be restrained from dealing with the specified land parcels pending the hearing and determination of the suit.
- 3 Whether the failure of the Land Registrar to place cautions justifies court intervention through inhibition orders.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of inhibition and temporary injunction orders. The plaintiff demonstrated a legitimate interest in the suit properties, and there was a real risk that the defendant would dispose of or encumber the remaining parcels, thereby prejudicing the plaintiff's rights. The court noted that the Land Registrar's refusal to place cautions left the plaintiff with no alternative but to seek court intervention. The defendant failed to respond to the application within the prescribed time, and his request for more time was denied. The court concluded that granting the orders would not prejudice the defendant and was...
Court Disposition
Application allowed in terms of prayers 3 and 5; costs in the cause.
Orders
- An inhibition order is granted restraining and prohibiting the registration of any dealings in respect of land parcel numbers Karingani/Ndagani/10455, 10456, 10459, 10460, 10461 pending the hearing and determination of the suit.
- A temporary injunction is granted restraining the defendant, his agents, family members, servants or anyone acting on his behalf from entering, selling, alienating, developing, leasing or in any other manner interfering with land parcel numbers Karingani/Ndagani/10455, 10456, 10459, 10460, and 10461 pending the...
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC SUIT NO . 220 OF 2016
KOOME SAMUEL MWIRARIA.................................................................PLAINTIFF
VERSUS
NICKSON MUGAMBI RUCHA …......................................................DEFENDANT
R U L I N G
1. This application is dated 09/11/2016. It seeks orders:-
1. THAT this Honourable Court be pleased to certify this application as urgent and dispense with service in the first instance.
2. THAT this Honourable Court be pleased to make an inhibition order restraining and prohibiting the registration of any dealings in respect of land parcel numbers Karingani/Ndagani/10455, 10456, 10459, 10460, 10461 pending the hearing and determination of this application.
3. THAT This Honourable Court be pleased to make an inhibition order restraining and prohibiting the registration of any dealings in respect of land parcel numbers Karingani/Ndagani/ 10455, 10456, 10459, 10460, 10461 pending the hearing and determination of this suit.
4. THAT this Honourable Court be pleased to grant an order of temporary injunction to restrain the defendant, his agents, family members, servants or anyone acting at his behalf from entering, selling, alienating, developing, leasing or in any other manner otherwise interfering with Land parcel numbers Karingani/Ndagani/ 10455, 10456, 10459, 10460, and 10461 pending the hearing and determination of this application.
5. THAT this Honourable Court be pleased to grant an order of temporary injunction to restrain the defendant, his agents, family members, servants or anyone acting at his behalf from entering, selling, alienating , developing, leasing or in any other manner otherwise interfering with Land Parcel numbers Karingani/Ndagani/ 10455, 10456, 10459, 10460, and 10461 pending the hearing and determination of this suit.
2. The application is supported by the affidavit of KOOME SAMUEL MWIRARIA and has the following grounds:-
(a) That in or about year 2013 an agreement was entered between DAUDI MWIRARIA and NICKSON MUGAMBI RUCHA for the purchase of land parcel number Karingani/Ndangani/6281 which measured approximately 0. 80 Hectares or 2 acres from one JUSTUS NTWIGA NTIBA.
(b) That contrary and in breach of the agreement NICKSON MUGAMBI RUCHA had the entire parcel No. Karingani/Ndagani/6281 registered in his name and thereafter he proceeded to subdivide the said two acre parcel of land into nine new parcels to wit Karingani/Ndagani/10453, 10454, 10455, 10456, 10457, 10458, 10459, 10460 and 10461.
(c) That Nickson Mugambi Rucha proceeded to sell and/or transfer 4 of the subdivisions I.e Karingani/ Ndagani/10453,10454,10457 and 10458 to one Felix Kamundi Njeru who subsequently charged the said properties to Equity Bank Ltd.
(d) That on 3rd December, 2014 DAUDI MWIRARIA who had a half (50%) share in the original property Karingani/Ndagani. 6281 transferred his share to his son KOOME SAMUEL MWIRARIA.
(e) That unless the defendant is restrained he will proceed to sell, alienate or otherwise dispose off the remaining five unencumbered parcels of land.
(f) That there is a real risk that the defendant will indeed transfer to third parties or charge the remaining parcels of land and the plaintiff who has an interest therein will be fraudulently deprived of the same.
(9) That despite making attempts to place cautions over the remaining parcel of land the Land Registrar Chuka has declined to do so and grant of an inhibition order by this Court is the sole remaining avenue available to secure the plaintiffs interest in the properties.
(h) That the whole purpose and intent of this suit would be rendered nugatory if inhibition orders are granted pending the hearing and determination of this application and suit.
(i) That no prejudice will be occasioned upon the defendant if inhibition and/or preservatory orders are granted pending the hearing and determination of this application and suit.
3. During interpartes hearing, Mr. Frank Gitonga, the applicant's Advocate told the Court that the respondent had 10 days to respond to the application but he had not done so.
4. I agree that for an application, 10 days is enough time for a respondent to file a Replying Affidavit to enable the relevant application to be heard interparpartes.
5. Having perused the pleadings proffered by the applicant, I find that the application is meritorious.
6. I deny the respondent's prayer for more time to be given to him so that he can respond to the application.
7. In the circumstances, the application is allowed in terms of prayers 3 and 5
8. Costs shall be in the cause.
9. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 13TH DAY OF DECEMBER, 2016 IN THE PRESENCE OF:-
CC: Daniel/James
Frank Gitonga for the Plaintiff
Ashava h/b D.J. Mbaya for the Defendant
P.M. NJOROGE
JUDGE