[2011] KEHC 2544 (KLR)
The court found that the applicant, as the registered proprietor in possession of the disputed property and holding a title deed not challenged for fraud or misrepresentation, had established a prima facie case. Given the opposing claims of purchase from different members of the Tinet Farmers Co-operative Society...
Source-derived case information.
- Citation
- [2011] KEHC 2544 (KLR)
- Parties
- Applicant: Mathew Kiprop Mutai; Respondent: Mary Moraa Nyabwori
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 309 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- Temporary injunction granted in favour of the applicant; costs in the cause.
- Judges
- SP Ouko
- Legal Topics
- Ownership Disputes, Title Deeds, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Kiprop Mutai
Applicant
Mary Moraa Nyabwori
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for the grant of a temporary injunction.
- 2 Whether the status quo of the suit property should be preserved pending trial.
- 3 Whether the applicant's title and possession are sufficiently challenged to deny interim relief.
Ratio Decidendi
The court found that the applicant, as the registered proprietor in possession of the disputed property and holding a title deed not challenged for fraud or misrepresentation, had established a prima facie case. Given the opposing claims of purchase from different members of the Tinet Farmers Co-operative Society and the lack of a counter-claim by the respondent, it was just and fair to preserve the status quo. The court therefore granted a temporary injunction restraining interference with the suit property pending the hearing and determination of the main suit.
Court Disposition
Temporary injunction granted in favour of the applicant; costs in the cause.
Orders
- A temporary injunction is issued in terms of prayer 3 of the summons, restraining interference with the suit property pending hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO.309 OF 2010
MATHEW KIPROP MUTAI..............................................................................................PLAINTIFF/APPLICANT
VERSUS
MARY MORAA NYABWORI...................................................................................DEFENDANT/RESPONDENT
RULING
The issues involved in this dispute are fairly straight forward and largely uncontroverted. For instance, it is common ground that the applicant, Mathew Kiprop, is the registered proprietor of MOLO SOUTH/KERINGET BLOCK 4/111 (TINET) having been issued with the title deed to that parcel of land on 31st December, 2002. The respondent has also laid a claim to the suit land which she has averred she purchased from Ezekiel Kigwa Milgo, a member of Tinet Farmers Co-operative Society. She has further asserted that she lost possession of the suit land during the 1992 tribal clashes in the area but returned in 1995 only to find the property occupied by the applicant. The dispute was referred to the Olenguruone Land Disputes Tribunal which found in favour of the respondent.
The applicant was aggrieved and moved by way of an appeal to the Appeals Committee which upheld the decision of the tribunal and ordered for the applicant’s eviction. The last decision (of the Appeal Committee) was rendered on 24th February, 2009. This matter has not come to this court by wa`y of an appeal from that decision or judicial review but by way of a plaint. The basis of claims by both parties is that each purchased the suit property from two different members of Tinet Farmers Co-operative Society. While the applicant has averred that he bought from Lucy Chebet Beibei on 9th May, 1998, the respondent has maintained that she purchased from Ezekiel Kigwa Milgo. Whereas the applicant’s agreement with the said Lucy Chebet Beibei is specific that the property in the transaction is Plot No.111, the respondent’s agreement (in Kiswahili language) is silent on the property the subject of the transaction. It is also worth noting that the respondent has not counter-claimed. In view of the opposing claims, it is just and fair that status quo of the suit property be preserved pending the determination of its ownership at the trial.
The applicant has therefore persuaded me that he has a prima facie case. He is in possession of both the disputed property and the documents of title which have not been challenged on account of fraud or misrepresentation. In the result, there will be a temporary injunction in terms of prayer 3 of the summons pending the hearing and determination of this suit.
Costs in cause
Dated, Delivered and Signed at Nakuru this 8th day of April, 2011.
W. OUKO
JUDGE