[2012] KEHC 3112 (KLR)
The court found that the plaintiff had established a prima facie case as the registered proprietor of the suit property, supported by documentary evidence. Given the serious allegations and counter-allegations regarding ownership and mapping discrepancies, the matter was deemed suitable for full trial. To prevent...
Source-derived case information.
- Citation
- [2012] KEHC 3112 (KLR)
- Parties
- Plaintiff: Martin Otieno Arango; Defendant: Jacob Omondi Apida
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 54 of 2012
- Procedural Posture
- Civil Suit / Interlocutory Application for Injunction
- Outcome
- application for temporary injunction allowed
- Judges
- HK Chemitei
- Legal Topics
- Injunctive Relief, Title Disputes, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Otieno Arango
Plaintiff
Jacob Omondi Apida
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from dealing with land parcel Kisumu/Kochieng/3071 pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case with a probability of success.
- 3 Whether the status quo should be maintained pending trial.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case as the registered proprietor of the suit property, supported by documentary evidence. Given the serious allegations and counter-allegations regarding ownership and mapping discrepancies, the matter was deemed suitable for full trial. To prevent prejudice and maintain fairness, the court held that the status quo should be preserved, restraining the defendant and third parties from interfering with the plaintiff's possession or compelling surrender of the title. The application for a temporary injunction was therefore allowed, with costs to the applicant.
Court Disposition
application for temporary injunction allowed
Orders
- Temporary injunction granted restraining the defendant or his agents from dealing with land parcel Kisumu/Kochieng/3071 pending hearing and determination of the suit.
- Plaintiff/applicant not to be compelled to surrender title or permit third party entry as per the Chief's letter.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATKISUMU
CIVIL SUIT 54 OF 2012
MARTIN OTIENO ARANGO...................................................................................................................PLAINTIFF
VERSUS
JACOB OMONDI APIDA.....................................................................................................................DEFENDANT
RULING
The Application dated 21st March 2012 by the plaintiff / applicants prays for temporary orders of injunction to restrain the defendant or his agents from dealing with land parcel number Kisumu / Kochieng / 3071 pending the hearing and determination of this suit. It is supported by the plaintiff / applicant affidavit sworn on the same day.
The plaintiff / applicant has argued that he is the registered propriety of the suit property. He has attached a copy of the title deed showing his proprietorship as from 12th August 2011. The applicant has also exemplified several correspondence from the Senior Chief East Kochieng location demanding that he shall authorize the defendant to enter the suit property.
The District land Registrar has equally demanded the surrender of the Title Deed by the applicant. This was vide his letter dated 2nd March 2012.
The respondent has filed his replying affidavit dated 27th June 2012. According to him the applicant has no claim over the suit land having obtained the registration before getting letters of administration.
However of great significance is his assertion in paragraph 9 of his affidavit that there is a problem with the map and that the parcels number 3070 and 3071 are not talling on the ground. He has gone ahead to attach copies of maps and minutes of a land dispute tribunal case.
My overall assessment of the applicant’s application is that this is a case that ought to go to a full trial. There are serious allegations and counter allegation made by the parties herein against each other.
The proper position is to maintain the status quo. The plaintiff / applicant should not be compelled by the Chief or the land registrar to surrender his title or in any other way as the Chiefs letter suggest, permiting third parties to invade the applicant’s parcel of land.
I shall therefore allow the application dated 21st March 2012 for the reasons stated above and further that the applicant has shown a prima facie case.
The applicant shall have the costs of this application.
Dated, signed and delivered at Kisumu this 13th of July 2012
H. K. CHEMITEI
JUDGE
In the presence of:
Onyango Advocate for Applicant / Plaintiff
Lore for KowinoAdvocate for Defendant
HKC/aao