[2008] KEHC 3096 (KLR)
The court found that the appellant failed to provide any credible evidence, documentary or otherwise, to prove that he purchased the disputed portion of the plot from the respondent's deceased husband. The appellant did not produce a written agreement, receipt, or any proof of payment, nor did he take possession of...
Source-derived case information.
- Citation
- [2008] KEHC 3096 (KLR)
- Parties
- Appellant: Loise Ruguru Kimani; Respondent: Nelson Ndege Gatimu
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs to respondent
- Legal Topics
- Ownership Dispute, Injunctions, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Ruguru Kimani
Appellant
Nelson Ndege Gatimu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant proved ownership of the disputed portion of plot No. A 38 A at Wanguru market.
- 2 Whether the appellant was entitled to a permanent injunction against the respondent.
- 3 Whether the trial magistrate erred in dismissing the appellant's claim for lack of evidence.
Ratio Decidendi
The court found that the appellant failed to provide any credible evidence, documentary or otherwise, to prove that he purchased the disputed portion of the plot from the respondent's deceased husband. The appellant did not produce a written agreement, receipt, or any proof of payment, nor did he take possession of the property. The court agreed with the trial magistrate that the appellant's claim only arose after the death of the respondent's husband, which cast further doubt on its legitimacy. The County Council's approval was deemed irrelevant as the plot was private property and not subject to council allocation. Consequently, the appellant failed to establish ownership or entitlement...
Court Disposition
appeal dismissed with costs to respondent
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Appeal 16 of 2005
LOISE RUGURU KIMANI…………...……………………..APPELLANT
VERSUS
NELSON NDEGE GATIMU……………………………..RESPONDENT
JUDGMENT
This appeal arises out of Judgment and decree delivered on 9/2/2004 in Wanguru Senior Resident Magistrate’s Civil Case No. 75 of 2004.
In that case the Plaintiff/Appellant case was dismissed with costs. The dispute as disclosed in the record is that the plaintiff/Appellant claimed a portion measuring 15ft X 40 ft of a lock up No.38 at Wanguru market having bought it from Gideon Njenga the deceased husband of Defendant but that the defendant has since 1997 interfered with Plaintiff’s possession without any claim. The plaintiff/Appellant was therefore seeking court’s assistance by issuing permanent injunction against the Defendant. The plot No. A 38 A (1/2 plot) was acquired in 1994 by appellant after a purchase from deceased aforesaid. He was issued with approval by Kerugoya County Council on 21/2/2005 many years after acquisition. After the death of the person who sold the plot to him how could the council approve his purchase and authorize joint ownership after the death. The plot was a private property. Not of the council. His evidence was that the Defendant has developed the whole plot. And the Defendant’s husband is registered as a proprietor of the plot and her daughter was living in the house on the plot. The defendant Respondent denied the alleged purchase of the half plot by the Appellant. She also testified that her deceased husband had purchased the plot from another private person. The plot is still in the name of her deceased husband
From the evidence on the record the Appellant raised his claims only after the death of Respondent’s husband. It is from that evidence that the Trial Magistrate found it strange that the dispute arose after deceased demise. The Trial Magistrate found that there was no evidence that the Appellant purchase the ½ plot from the Defendant husband. There was no evidence apart the Appellant’s allegations. There was no evidence in writing and the Appellant had not taken possession of what he says he purchased. Indeed the Appellant was not able to produce receipt for the money he says he paid for the ½ of plot to deceased. The Trial Magistrate then found that a permanent injunction could not be issued against the defendant.
I have carefully examined the record and the Judgment of the Trial Magistrate’s court and I find that there was no evidence to support the appellant’s case. It is true that Appellant had slept on his rights. He did not make his claims during the 6 years the seller was alive on ground No. 3 the County Council had no authority to interfere with private property. In the circumstances there was no evidence to warrant issue of orders sought by Appellant. The Appellant had not proved his ownership of the plot and therefore he was not entitled to an injunction.
The appeal is dismissed with costs to Respondent.
Dated this 12th February, 2008.
J. N. KHAMINWA
JUDGE
12/2/1008
Khaminwa – Judge
Njue – Clerk
Daniel – present
Monica – Present
Judgment read in open court.
J. N. KHAMINWA
JUDGE