[2016] KEHC 4287 (KLR)
The court determined that, given the serious allegations regarding unlawful dispossession and the purported illegal sale of the applicant's land, the matter raises substantial issues that warrant a full hearing with all parties present. The court found it inappropriate to grant final or substantive orders at the...
Source-derived case information.
- Citation
- [2016] KEHC 4287 (KLR)
- Parties
- Applicant: Luke Njiru Kageki; Respondent: Industrial and Commercial Dev Corp; Defendant: Edwin Nyaga Nyamura
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 74 of 2008
- Procedural Posture
- Civil Case / Ruling on Ex Parte Application for Interim Relief
- Outcome
- Application to be heard inter partes; no final orders granted at ex-parte stage.
- Legal Topics
- Statutory Power of Sale, Injunctive Relief, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luke Njiru Kageki
Applicant
Industrial and Commercial Dev Corp
Respondent
Edwin Nyaga Nyamura
Defendant
Procedural Posture
Civil Case / Ruling on Ex Parte Application for Interim Relief
Legal Issues
- 1 Whether the applicant is entitled to interim relief to prevent further alienation of the suit land pending inter partes hearing.
- 2 Whether the respondent's actions in purporting to sell the suit land were lawful.
Ratio Decidendi
The court determined that, given the serious allegations regarding unlawful dispossession and the purported illegal sale of the applicant's land, the matter raises substantial issues that warrant a full hearing with all parties present. The court found it inappropriate to grant final or substantive orders at the ex-parte stage and directed that the application be served on the other parties for an inter partes hearing. This approach upholds the principles of fairness and due process, ensuring that all affected parties have an opportunity to be heard before any substantive orders affecting property rights are made.
Court Disposition
Application to be heard inter partes; no final orders granted at ex-parte stage.
Orders
- Applicant to serve the application on the other parties.
- Matter to be set down for hearing as soon as practicable.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL CASE NO. 74 OF 2008
LUKE NJIRU KAGEKI..................................................................... ...APPLICANT/PLAINTIFF
VERSUS
INDUSTRIAL AND COMMERCIAL DEV CORP........................ RESPONDENT/DEFENDANT
AND
EDWIN NYAGA NYAMURA........................................................................INTERESTED PARTY
RULING
This is an application brought under certificate of urgency by the applicant/plaintiff. It is supported by the grounds on the face of the notice of motion. The applicant also relies on his supporting affidavit. According to the applicant's affidavit, he has stated that he is the plaintiff in the main suit and is the owner of land parcel No. Weru/Kagaari/1544, on which his family and himself depend for their subsistence. According to him, the respondent purported to sell the suit land pursuant to a chargee's statutory power of sale. It is his affidavit evidence that he did not owe any money to the respondent.
Furthermore, he has also stated in the affidavit that the court declared the purported sale illegal, null and void and that the proposed second defendant (herein the interested party) colluded with the respondent to have the title register reflect his name as the proprietor of the suit land. He has further stated that between 20th May 2016 and 24th May 2016, unknown persons appeared on the land claiming that they wished to view it, since they had been told that the land was up for sale. It is also his affidavit evidence that the respondent had gone public to state that the suit land was in his possession.
According to the applicant, the respondent has tried unlawfully to dispossess the applicant of his land and has now renewed his attempts to alienate the land from the possession of the applicant. This was anex-parte application and counsel made oral submissions in support of the application.
I have considered the affidavit evidence and the annexes to the affidavit. I find that this application should be heard inter partes in view of the issues raised by the applicant.
The applicant is therefore directed to serve the other parties and have the matter set down for hearing as soon as it is practicable.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 8th day of JUNE2016
In the presence of Ms Njiru holding brief for Mr. Karuti for the plaintiff and Ms Migwi holding brief for Ms Wairimu for the defendant
Court clerk R. Njue
J.M. BWONWONGA
JUDGE
08. 06. 16