[2013] KEHC 648 (KLR)
The court found that the defendants are the registered proprietors and are in occupation of the suit land. The applicants' claim is based on adverse possession and alleged fraud, but they have not yet proven fraud or established a prima facie case. The court held that it would be unfair to restrain the registered...
Source-derived case information.
- Citation
- [2013] KEHC 648 (KLR)
- Parties
- Plaintiff: Lonita Lihavi; Plaintiff: Michael Musambayi; Defendant: Gunyama A. Gunyama; Defendant: Respa Lishindu Machinji; Defendant: Jacktone Nyikuli
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 8 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Adverse Possession, Fraudulent Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lonita Lihavi
Plaintiff
Michael Musambayi
Plaintiff
Gunyama A. Gunyama
Defendant
Respa Lishindu Machinji
Defendant
Jacktone Nyikuli
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the defendants from utilizing plot number ISUKHA/SHIRERE/2725.
- 2 Whether the applicants have established a prima facie case for the grant of an injunction based on adverse possession and alleged fraud.
Ratio Decidendi
The court found that the defendants are the registered proprietors and are in occupation of the suit land. The applicants' claim is based on adverse possession and alleged fraud, but they have not yet proven fraud or established a prima facie case. The court held that it would be unfair to restrain the registered owners from utilizing their land without such proof. Furthermore, the applicants did not demonstrate irreparable harm that would justify the grant of an injunction. Consequently, the application for an interlocutory injunction was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated 18.10.2010 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE NO. 8 OF 2010 (OS)
LONITA LIHAVI …………………………………………….. 1ST PLAINTIFF
MICHAEL MUSAMBAYI …………………………………… 2ND PLAINTIFF
V E R S U S
GUNYAMA A. GUNYAMA ……………………………….. 1ST DEFENDANT
RESPA LISHINDU MACHINJI ………………………… 2ND DEFENDANT
JACKTONE NYIKULI ……………………………………. 3RD DEFENDANT
R U L I N G
In the application dated 18. 10. 2010 the applicants are seeking an order of injunction against the defendants in relation to plot number ISUKHA/SHIRERE/2725. The application is supported by the affidavit of the 1st applicant. The respondents filed a replying affidavit sworn by the 1st respondent on the 1. 10. 2012. The applicants informed the court that they seek to restrain the defendants from utilizing the suit land as the land belongs to them. Mr. Akwala, counsel for the respondents opposed the application and relied on the replying affidavit. Counsel submitted that the 2nd plaintiff attempted to enter the suit land in the year 2008 but was restrained by a court order in Kakamega HCCC No. 84 of 2008. The applicants claim is for adverse possession and yet the land is registered in the names of the defendants.
Having gone through the application together with the supporting affidavit, it is established that the defendants are the current registered proprietors of the suit land. The applicants contend that the defendants obtained registration by means of fraud. It is also established that the defendants are the ones in occupation. The applicants have to first prove that the registration was fraudulent before they can restrain the defendants from utilizing the suit land. I am seeing any irreparable damage that would be suffered by the applicants should the orders not be granted. The defendants are the registered owners of the suit land and it would be unfair to injunct them at this moment. I do find that the application dated 18. 10. 2010 lacks merit and the same is dismissed with no orders as to costs.
Delivered, dated and signed at Kakamega this 4th day of December 2013
SAID J. CHITEMBWE
J U D G E