[2019] KEELC 2969 (KLR)
The court found that the applicant failed to demonstrate a prima facie case with a probability of success as required by the principles in Giella v Cassman Brown. The land in question is registered in the name of Taita Arap Marisin, the applicant's father-in-law, who is still alive and lawfully subdivided the land...
Source-derived case information.
- Citation
- [2019] KEELC 2969 (KLR)
- Parties
- Applicant: Margaret Yegon; Respondent: Millicent Chepngeno; Respondent: Christopher Kibet Yegon; Respondent: William Kipnegetich Yegon; Respondent: Patrick Kiprotich Yegon
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 49 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Caution
- Outcome
- application dismissed
- Judges
- DO Ogal
- Legal Topics
- Inhibition Orders, Land Subdivision Disputes, Registration of Land, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Yegon
Applicant
Millicent Chepngeno
Respondent
Christopher Kibet Yegon
Respondent
William Kipnegetich Yegon
Respondent
Patrick Kiprotich Yegon
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Inhibition and Caution
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant an order of inhibition against dealings in the suit properties.
- 2 Whether the applicant is entitled to a caution being registered over the suit properties pending determination of the suit.
- 3 Whether the applicant has demonstrated sufficient interest in the suit properties to justify interlocutory relief.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case with a probability of success as required by the principles in Giella v Cassman Brown. The land in question is registered in the name of Taita Arap Marisin, the applicant's father-in-law, who is still alive and lawfully subdivided the land among his children. The applicant did not establish a legal or equitable interest in the suit properties sufficient to justify the orders of inhibition or caution. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 3rd December 2018 is dismissed.
- The costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERICHO
ELC CASE NO. 49 OF 2016
MARGARET YEGON...............................................PLAINTIFF/APPLICANT
VERSUS
MILLICENT CHEPNGENO.................................................1ST RESPONDENT
CHRISTOPHER KIBET YEGON........................................2ND RESPONDENT
WILLIAM KIPNEGETICH YEGON..................................3RD RESPONDENT
PATRICK KIPROTICH YEGON........................................4TH RESPONDENT
RULING
Introduction
1. By a Notice of Motion dated 3. 12 2018 brought pursuant to Order 40 of the Constitution and Order 40 Rules 1 and 2 of the Civil Procedure Rules as well as Section 68 of the Land Registration Act, 2012, the Plaintiff/Applicant seeks the following orders:
a) Spent.
b) That an order of inhibition do issue inhibiting the sub-division sale, transfer or any other dealings in respect to land parcels numbers KERICHO/KIPSONOI S.S /1903, 1904. 1095, 1906, 1907 and 1908 being sub-divisions of land parcel number KERICHO/KIPSONOI S.S/288 pending the hearing and determination of the this application.
c) That the Land Registrar, Bomet County be directed to register a caution in the names of the Applicant on the parcels of land known as KERICHO/KISONOI S.S/1903,1904,1905, 1906,1907 and 1908 pending the hearing and determination of this suit.
d) That any such order or further order be made as the honourable court shall deem just and expedient.
e) That the costs of this application be provided for.
2. The application is premised on the grounds stated on the face of the application and the Applicant’s supporting affidavit sworn on the 3rd December 2018. In the said affidavit the Plaintiff depones that she is the widow and administrator of the estate of Paul Kimutai Yegon –deceased who was allocated land parcel no. KERICHO/KIPSONOI S.S /288 and that she occupies the said parcel of land. She further depones that the Respondents have sub-divided the said parcels of land into six portion without involving her and she fears that they might dispose of the land thus defeating the purpose of this suit. To the said affidavit she has annexed a copy of a certificate official search in respect of land parcel no KERICHO/KIPSONOI S.S /288 in the name of Taita Arap Marisin. She has also attached copies of certificates of official search in respect of parcels no. KERICHO/KIPSONOI S.S 1903-1908 which are in the names of the Respondents save for parcel number KERICHO/KIPSONOI S.S/ 1904 which is in the name of Taita Marisin.
3. The application is opposed by the 3rd Respondent through his Replying affidavit sworn on 1st April 2019. The gist of the said affidavit is that the late husband of the Plaintiff is the son of Taita Arap Marisin who is the registered owner of the original parcel of land known as KKERICHO/KIPSONOI/288. The said Arap Marisin is still alive and he is the one who sub-divided his land among his children including the plaintiff’s late husband. The Plaintiff therefore has no basis to complain as the land belongs to her father in law.
4. That being the position, the Plaintiff has failed to demonstrate that she has prima faciecase with a probability of success in accordance with the principles in Giella v Cassman Brown.
5. Her application is therefore without merit and I dismiss it.
6. The costs of this application shall be in the cause.
Dated, signed at delivered at Kericho this 14th day of June, 2019.
.............................
J.M ONYANGO
JUDGE
In the presence of:
1. Miss Ngetich for the Plaintiff/Applicant
2. No appearance for the Defendant/Respondent
3. Court clerk - Rotich