[2014] KEHC 2476 (KLR)
The court found that the plaintiffs had established sufficient grounds for the preservation of the suit lands through an inhibition order. The judge reasoned that if the suit lands were disposed of before the suit was heard and determined, the suit would be rendered nugatory. The competing claims regarding the...
Source-derived case information.
- Citation
- [2014] KEHC 2476 (KLR)
- Parties
- Plaintiff: Margaret Nthiga Murungi & 11 Others; Defendant: Musa M'Murungi Ncebere; Defendant: Charity Naitore
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 42 of 2014
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Inhibition
- Outcome
- Application allowed. Inhibition order granted. Costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Trusts Over Land, Inhibition Orders, Ancestral Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nthiga Murungi & 11 Others
Plaintiff
Musa M'Murungi Ncebere
Defendant
Charity Naitore
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Inhibition
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for the grant of an inhibition order restraining dealings with the suit lands pending determination of the suit.
- 2 Whether the suit lands are held in trust by the 1st defendant for the benefit of the plaintiffs.
- 3 Whether the intended transfer of the suit lands to the 2nd defendant should be restrained to preserve the subject matter of the suit.
Ratio Decidendi
The court found that the plaintiffs had established sufficient grounds for the preservation of the suit lands through an inhibition order. The judge reasoned that if the suit lands were disposed of before the suit was heard and determined, the suit would be rendered nugatory. The competing claims regarding the nature of the land (whether ancestral or purchased) and the beneficial interests could only be fully resolved at trial. Therefore, to prevent the risk of irreparable harm and to maintain the status quo, the court exercised its discretion to grant the inhibition order sought by the plaintiffs, pending the hearing and determination of the main suit.
Court Disposition
Application allowed. Inhibition order granted. Costs in the cause.
Orders
- An order of inhibition is issued restraining any dealings whatsoever with land parcels ABOTHUGUCHI/KATHERI/3148 (now sub-divided into ABOTHUGUCHI/KATHERI/4360, ABOTHUGUCHI/KATHERI/4361, ABOTHUGUCHI/KATHERI/250), PLOT NO. 307 KULA MAWE ISIOLO TOWN, and MERU MUNICIPALITY BLOCK I 1/36 until the suit is determined or...
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 42 OF 2014
MARGARET NTHIGA MURUNGI & 11 OTHERS....................................PLAINTIFFS
VERSUS
MUSA M'MURUNGI NCEBERE......................................................1ST DEFENDANT
CHARITY NAITORE..........................................................................2ND DEFENDANT
R U L I N G
This application is dated 9th March, 2014 and seeks orders that:
(a) The Hon. Court do certify this application as extremely urgent and the same be heard ex-parte in the 1st instance, service of the same to be dispersed with in the 1st instance.
(b) The Hon. Court do issue an order for inhibition restraining any dealings whatsoever with land parcels NO.ABOTHUGUCHI/KATHERI/3148 now sub-divided into ABOTHUGUCHI / KATHERI 4360, and ABOTHUGUCHI/KATHERI/4361 and ABOTHUGUCHI/KATHERI/250, PLOT NO. 307 KULA MAWE ISIOLO TOWN, MERU MUNICIPALITY BLOCK I 1/36 until the suit is determined or until this application is heard and determined or until further orders of this court.
(c) The Hon. Court do make such further orders as may meet the ends of justice.
(d) Costs be borne by the respondent
The only ground supporting the application is that the respondents are in the process of transferring the suit land.
Prayers 1 and 2 were granted at the exparte hearing stage.
The plaint in this suit seeks judgment to declare that the suit lands are held in trust by the 1st defendant and that the intended transfer to the 2nd defendant is null and void ab initio. It also seeks an injunctive order restraining the defendants from interfering with the plaintiff's beneficial interests in the suit lands.
The plaintiffs state that the 1st defendant seeks to transfer some of the suit lands, which they claim are ancestral lands to the 2nd defendant. The 1st plaintiff is the wife of the 1st defendant. The other plaintiff's are apparently his children. The 2nd defendant is also his child. The 1st defendant had more than one wife. The plaintiffs through an order of inhibition seek to protect the suit lands pending hearing and determination of this suit.
The 1st defendant argues that the suit lands are not ancestral land and claims that he purchased them. He claims in his replying affidavit that after the demise of his 1st wife, the 1st plaintiff, the 2nd plaintiff and the 10th plaintiff engaged in an orgy of beating him as he was old, frail and sickly. They also denied him food necessitating him to move to Isiolo where the 2nd defendant, who now takes care of him works. He claims that the 1st plaintiff was opposed to the sub-division of Land Parcel No. Abothuguchi/Katheri/3148 into equal parts so that the 1st plaintiff took one portion for herself and her siblings and the 2nd defendant took the other portion in trust for other siblings who were not the children of the 1st plaintiff. He sensationally claimed that if he had continued to live with the 1st plaintiff she would, by now, have killed him. He claimed that the institution of this suit was meant to stress him to death as he was hypertensive and upon his death the 1st plaintiff would be left free to mistreat those of his children who are not her biological children.
Be it as it is may, this application should, like any other application be handled, judicially. This despite the palpable veritable pathos evoked by the 1st defendant's claims. I have considered the averments of the parties and their submissions.This application seeks orders which will preserve the suit lands pending hearing and determination of this suit. If the suit lands are disposed of before this suit is heard and determined, this suit would be rendered nugatory. I find that the assertions and counter assertions of the parties can only be fully ventilated during the hearing of the suit.
In the circumstances, I allow the application. Costs shall be in the cause.
It is so ordered.
Delivered in open court at Meru this 3rd day of July, 2014 in the presence of:
Ngunjiri h/b Miss E. G. Mwangi for Plaintiff/Applicant
Firm of Meenye & Kirima for defendants – Absent
P. M. NJOROGE
JUDGE