[2017] KEELC 3430 (KLR)
The court found that the applicant's request for a permanent injunction could not be granted at the interlocutory stage because such a prayer was not included in the plaint. The only relief sought in the plaint was for the Land Registrar and District Surveyor to visit the disputed parcels and determine the boundary....
Source-derived case information.
- Citation
- [2017] KEELC 3430 (KLR)
- Parties
- Plaintiff: Mary Muthoni Mbugua; Defendant: Lilian W. Mbugua; Defendant: Sarah Jeptepeny Busienei; Defendant: Emily Jepkemboi Mutwol
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 169 of 2007
- Procedural Posture
- Land and Property Dispute / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- FM Njoroge
- Legal Topics
- Boundary Disputes, Injunctive Relief, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Muthoni Mbugua
Plaintiff
Lilian W. Mbugua
Defendant
Sarah Jeptepeny Busienei
Defendant
Emily Jepkemboi Mutwol
Defendant
Procedural Posture
Land and Property Dispute / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a permanent injunction restraining the respondent from interfering with LR No. Chepsiro/Kibuswa Block 1/Kelchinet/200.
- 2 Whether the application for a permanent injunction can be granted at the interlocutory stage in the absence of such a prayer in the plaint.
- 3 Whether there is evidence of encroachment or reduction of the applicant's land entitlement.
Ratio Decidendi
The court found that the applicant's request for a permanent injunction could not be granted at the interlocutory stage because such a prayer was not included in the plaint. The only relief sought in the plaint was for the Land Registrar and District Surveyor to visit the disputed parcels and determine the boundary. Furthermore, the applicant failed to provide evidence that her portion of land was less than what she was entitled to or that the respondent had encroached upon her land. As a result, the application lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application for a permanent injunction is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KITALE
ELC CASE NO. 169 OF 2007
MARY MUTHONI MBUGUA…….………………...………PLAINTIFF
=VERSUS=
LILIAN W.MBUGUA & 2 OTHERS ….……………...DEFENDANTS
RULING.
1. This is a ruling in respect of Notice of Motion dated 29th August 2016. The application seeks orders of injunction against the third Respondent Emily Jepkemboi Mutwolrestraining her from interfering with LR No. Chepsiro/Kibuswa Block 1/Kelchinet/200, which was formerly part of LR No. Chepsiro/Kibuswa Block 1/Kelchinet/136.
2. The initial dispute in this matter was between the present applicant and her sister Lilian Wangare Mbugua who was the registered owner of LR No. Chepsiro /Kibuswa Block 1/ Kelchinet/137. The applicant was the registered owner of LR No. Chepsiro/ Kibuswa Block 1/ Kelchinet/136.
3. LR No. Chepsiro/Kibuswa Block 1/Kelchinet/137 has since been transferred to two persons at different times. The first transferee was Sarah Jeptepeny Busienei who later sold it to Emily Jepkemboi Muwtol who is the current owner. When LR No. Chepsiro/Kibuswa Block 1/Kelchinet /137 changed ownership to Sarah Jeptepeny, the Plaint was amended and brought her in as second defendant.
4. However, when ownership of LR No.Chepsiro/Kibuswa/Kelchinet/137 changed to Emily Jepkemboi Mutwol, there was no amendment made to bring her on board. She came into those proceeding as an aggrieved party who sought review of orders of the court adopting a survey report which would have adversely affected her.
5. The advocate for the applicant and the aggrieved party entered into a consent allowing the Provincial Surveyor Nakuru to carry out fresh survey to determine the boundary. The provincial surveyor however referred back to the District Surveyor Uasin Gishu. The record shows that the Surveyor Uasin Gishu summoned the parties for a second survey report that has never been filed in Court.
6. The delay in finalizing this matter which was just a boundary dispute between siblings appears to be taking a different dimension. LR No. Chepsiro/Kibuswa Block 1/Kelchinet/136 has since been subdivided and has yielded LR Nos. Chepsiro/Kibuswa Block1/Kelchinet/198,199 and 200.
7. LR No. Chepsiro/Kibuswa Block 1/Kelchinet/200 is now the one which borders LR No. Chepsiro/Kibuswa Block 1/Kelchinet/137 owned by the aggrieved Party/Respondent. The property was sub-divided during the pendency of the suit.
APPLICANT’S CONTENTION
8. The applicant still maintains that the aggrieved party/Respondent has encroached on to LR No. Chepsiro/Kibuwa Block 1/Kelchinet /200 by about 10 acres. It is on this basis that she prays for a permanent injunction restraining the Respondent from interfering with her 10 acres or thereabouts.
RESPONDENT’S CONTENTION
9. The applicant’s application is opposed by the aggrieved Party/Respondent who contends that the application is misconceived as it is seeking final orders at interlocutory stage. That this matter can only be determined if evidence is adduced in a full trial.
10. I have considered the applicant’s application as well as the opposition to the same by the aggrieved Party/Respondent. To begin with, the applicant is seeking an order of permanent injunction against the Respondent. There is no prayer in the Plaint for a permanent injunction. There is therefore no basis upon which such an order can be granted. The only prayer in the Plaint is for the Land Registrar and District surveyor to Visit LR .No.Chepsiro/ Kibuswa Block 1/Kelchinet/ 136and 137 and determine the boundary.
11. The records in this file show that the two sisters were each given 50 acres from the estate of their deceased parent. The applicant has since subdivided her portion into three parcels. There is no evidence as to the total acreage of the three parcels which resulted from LR No. Chepsiro/Kibuswa Block 1/Kelchinet/136. The applicant is now the owner of LR No. Chepsiro/Kibuswa Block 1 /Kelchinet /200. There is no evidence that her portion is less than what it ought to be .
CONCLUSION
12. I find that the applicants’ application lacks merit. The same is hereby dismissed with costs to the aggrieved Party/Respondent.
It is so ordered.
Signed at Nairobi.
E.O.OBAGA
JUDGE
Dated, and delivered at Kitaleon this 8thday of March 2017.
F. M. NJOROGE
JUDGE
In the presence of ;-
M/s Kiplangat for M/s Kipsei for third Respondent
No appearance for Plaintiff/Respondent
Court Assistant : Isabella
F. M. NJOROGE
JUDGE