[2013] KEHC 369 (KLR)
The court found that the plaintiff/applicant's affidavit and supporting documents were unchallenged, as the defendant/respondent failed to file any response. The court accepted the applicant's evidence that the suit land was ancestral and that the defendant/respondent had fraudulently transferred it to himself and...
Source-derived case information.
- Citation
- [2013] KEHC 369 (KLR)
- Parties
- Plaintiff: Miriamu Njoka Njeru; Defendant: Johnstone Njeru Muringih
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 806 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application allowed; interlocutory orders granted as prayed in paragraphs 2, 3, and 4 of the Notice of Motion dated 22nd November 2013.
- Judges
- BN Olao
- Legal Topics
- Ancestral Land Claims, Fraudulent Transfer of Land, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriamu Njoka Njeru
Plaintiff
Johnstone Njeru Muringih
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff/applicant is entitled to interlocutory relief restraining the defendant/respondent from interfering with the suit land pending determination of the suit.
- 2 Whether the defendant/respondent fraudulently transferred the suit land to himself without the knowledge of family members.
- 3 Whether the demolition of the plaintiff/applicant's house by the defendant/respondent constitutes a criminal act.
Ratio Decidendi
The court found that the plaintiff/applicant's affidavit and supporting documents were unchallenged, as the defendant/respondent failed to file any response. The court accepted the applicant's evidence that the suit land was ancestral and that the defendant/respondent had fraudulently transferred it to himself and demolished the applicant's house. Given the absence of any rebuttal and the seriousness of the allegations, the court held that the applicant was entitled to the interlocutory orders sought in her Notice of Motion dated 22nd November 2013, except for the involvement of the police at this stage. The court granted the orders as prayed in paragraphs 2, 3, and 4 of the Notice of...
Court Disposition
Application allowed; interlocutory orders granted as prayed in paragraphs 2, 3, and 4 of the Notice of Motion dated 22nd November 2013.
Orders
- Interlocutory relief granted restraining the defendant/respondent from interfering with the suit land pending determination of the suit.
- Defendant/respondent restrained from further acts of demolition or dispossession against the plaintiff/applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC CASE NO. 806 OF 2013
MIRIAMU NJOKA NJERU ..................................................................... PLAINTIFF
VERSUS
JOHNSTONE NJERU MURINGIH ................................................. DEFENDANT
RULING
This is in respect to the plaintiff/applicant’s Notice of Motion dated 22nd November, 2013 seeking the orders set out therein. The same is supported by the applicant’s supporting affidavit sworn on the same date claiming, inter alia, that although the suit land KYENI/KIGUMO/3793 was registered in the names of defendant/respondent who is plaintiff/applicant’s son, the said land was actually ancestral land belonging to one M’Kiende Kaviro who is father to applicant’s father in law and which land was transmitted to applicant’s husband and which land ought therefore to have reverted to the plaintiff/applicant following the death of her husband. The plaintiff/applicant in her pleadings has averred that defendant/respondent has fraudulently transferred the land to himself without the knowledge of the family members and engaged the Kenya Power and Lighting Company over a project involving the dispute land.
The respondent though served, did not file any reply to the application. It is therefore un-opposed.
I have considered the application and the oral submissions by counsel. It is stated that the defendant/respondent has gone to the extent of demolishing the plaintiff/applicant’s house thus rendering her destitute. If that is true, and it has not been denied, it is infact a criminal act. In my view, having considered the plaintiff/applicant’s un-controverted affidavit and other annextures, I am satisfied that she is entitled to the orders sought in her Notice of Motion dated 22nd November 2013 which I grant save that at this stage, I would be reluctant to involve the Police in this matter but an appropriate application may be brought should that be necessary. I therefore grant orders as prayed in paragraph 2, 3 and 4 of the said Notice of Motion.
Costs in the cause.
B.N. OLAO
JUDGE
10TH DECEMBER, 2013
10/12/2013
Coram
B.N. Olao
CC – Muriithi
Mr. Mungai for Applicant present
No appearance for Respondent
COURT: Ruling delivered this 10th day of December 2013 in open Court.
Mr. Mungai for Applicant present.
B.N. OLAO
JUDGE
10TH DECEMBER, 2013