[2009] KEHC 560 (KLR)
The court found that the defendant is the registered proprietor of the suit land, as evidenced by the land certificate and official search. Although there is a restriction on the title due to a pending boundary dispute, the plaintiffs' actions in cutting down trees constituted acts of trespass. The court held that...
Source-derived case information.
- Citation
- [2009] KEHC 560 (KLR)
- Parties
- Plaintiff: Magige Samwel Nyamohanga; Plaintiff: Rioba Mwita Magige; Defendant: Lucas Wambura Monanka
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 99 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- Defendant's application for temporary injunction granted.
- Legal Topics
- Land Ownership Dispute, Injunctions, Land Registration, Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magige Samwel Nyamohanga
Plaintiff
Rioba Mwita Magige
Plaintiff
Lucas Wambura Monanka
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the defendant is entitled to a temporary injunction restraining the plaintiffs from trespassing on the suit land pending determination of the suit.
- 2 Whether the plaintiffs' actions on the suit land constitute trespass in light of the ongoing dispute and tribunal decision.
- 3 Whether the Kuria East Land Disputes Tribunal had jurisdiction to determine ownership of the suit land.
Ratio Decidendi
The court found that the defendant is the registered proprietor of the suit land, as evidenced by the land certificate and official search. Although there is a restriction on the title due to a pending boundary dispute, the plaintiffs' actions in cutting down trees constituted acts of trespass. The court held that it would be improper for either party to interfere with the suit land while the dispute is unresolved. Accordingly, the court granted the defendant's application for a temporary injunction to restrain the plaintiffs from trespassing or carrying out any acts on the land pending the final determination of the suit.
Court Disposition
Defendant's application for temporary injunction granted.
Orders
- A temporary injunction is issued restraining the plaintiffs from trespassing onto or interfering with Nyabasi/Bosonga/28 pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 99 of 2009
MAGIGE SAMWEL NYAMOHANGA )
RIOBA MWITA MAGIGE ) ….………. PLAINTIFFS
VERSUS
LUCAS WAMBURA MONANKA ………………… DEFENDANT
RULING
The plaintiffs filed a suit seeking, inter alia, an order of declaration that a decree dated 16th September, 2008 by the Kuria East Land Disputes Tribunal in respect of a parcel of land known as Nyabasi/Bosonga/28 is invalid, null and void because the Tribunal did not have jurisdiction. They also sought a declaration that the said land belongs to the second plaintiff.
The defendant filed an application seeking a temporary injunction to restrain the plaintiffs from trespassing onto the said Nyabasi/Bosongo/28 hereinafter known as (“the suit land”), pending the hearing and determination of this suit.
In his affidavit, the defendant deposed that he is the registered owner of the suit land but the plaintiffs had trespassed thereon and cut down some trees. He wondered why the plaintiffs were doing so when their case was still pending. The defendant annexed to his affidavit copies of a land certificate and a certificate of an official search. The same reveal that the defendant is the registered proprietor of the suit land. There is however a restriction that is registered against the title to prohibit any transaction until a pending boundary dispute is resolved. The restriction was put on 6th January, 2006. I believe the boundary dispute is between the parties herein.
The first plaintiff filed a replying affidavit and denied that they had entered the suit land since 2006 when the defendant had made a complaint against the second plaintiff that he had set fire upon his trees. As a result, the second plaintiff was charged in a criminal case but was acquitted. He however said that the alleged trees, and which are the subject matter of this application, are growing on a disputed portion of land. He claimed that he was mandated by the area chief to work on the land pending the final settlement of the dispute but none of them was to carry out permanent developments.
Mr. Kaburi for the applicant/defendant and Mr. Okoth for the respondents/plaintiffs made brief submissions which I have taken into consideration.
The suit land is currently registered in the name of the defendant. There is also a finding by the Kuria East Land Disputes Tribunal that the land belongs to the defendant. However, the plaintiffs are questioning that finding. It would be improper for any of the parties to cut down any trees or do any other acts of trespass on the suit land. I grant the orders as prayed by the defendant.
DATED, SIGNED AND DELIVERED AT KISII THIS 19TH DAY OF NOVEMBER, 2009.
D. MUSINGA
JUDGE.
19/11/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Kaburi for the Defendant/Applicant
N/A for the Plaintiff/respondent
Court: Ruling delivered in chambers.
D. MUSINGA
JUDGE.