[2015] KEELC 120 (KLR)
Given the conflicting claims over whether the defendant holds the land in trust for the plaintiffs or owns it absolutely, and in the absence of a response to the injunction application, the court cannot determine the substantive rights at this interlocutory stage. To prevent prejudice to either party and to maintain...
Source-derived case information.
- Citation
- [2015] KEELC 120 (KLR)
- Parties
- Plaintiff: Misheck Warui Nuthu; Plaintiff: David Mwangi Nuthu; Defendant: Stephen Kabuyu Nuthu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 301 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction granted to preserve status quo and inhibit disposition of the suit property pending determination of the suit.
- Judges
- MA Silau
- Legal Topics
- Trusts in Land, Family Land Disputes, Injunctive Relief, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Misheck Warui Nuthu
Plaintiff
David Mwangi Nuthu
Plaintiff
Stephen Kabuyu Nuthu
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the defendant holds the suit property in trust for the plaintiffs as family land.
- 2 Whether an interlocutory injunction should issue to preserve the status quo pending determination of the suit.
Ratio Decidendi
Given the conflicting claims over whether the defendant holds the land in trust for the plaintiffs or owns it absolutely, and in the absence of a response to the injunction application, the court cannot determine the substantive rights at this interlocutory stage. To prevent prejudice to either party and to maintain the peace, the balance of convenience requires that the current status quo as to occupation be preserved. The court therefore issues orders maintaining the status quo and inhibiting any disposition of the property until the suit is heard and determined.
Court Disposition
Interlocutory injunction granted to preserve status quo and inhibit disposition of the suit property pending determination of the suit.
Orders
- The current status quo as to occupation of land parcel Kabazi/Munanda/66 is to be preserved until conclusion of the suit.
- An order of inhibition is issued barring registration of any disposition in the register of Kabazi/Munanda/66.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 301 OF 2013
MISHECK WARUI NUTHU ……….…………..1ST PLAINTIFF
DAVID MWANGI NUTHU ……………………2ND PLAINTIFF
VERSUS
STEPHEN KABUYU NUTHU ………….……….DEFENDANT
RULING
(Application for injunction; plaintiffs stating that defendant is registered as proprietor but in trust; parties being brothers; status quo to be maintained pending hearing of the suit)
1. The two plaintiffs and the sole defendant are brothers, being sons of one Paul Nuthu Kabuyu (deceased). The defendant is the registered proprietor of the land parcel Kabazi/Munanda/66. It is the case of the plaintiffs that the said parcel of land was purchased and belonged to their deceased father, and that although the defendant is registered as proprietor, he holds the same in trust for all of them. It is their case that the land is family land and that the defendant being the first born, was entrusted to hold the land on their behalf. It is pleaded that on 9th January 2010, the defendant agreed to demarcate the land amongst his brothers but he reneged on his promise and has now threatened to evict the plaintiffs.
2. Together with the suit, the plaintiffs filed an application for injunction, which is the subject of this ruling, to stop the defendant from evicting them.
3. The defendant has not responded to the application but has filed a defence in which he has pleaded that the suit property solely belongs to him. He has refuted any sort of trust.
4. At this point in time, I cannot tell from the material before me whether the defendant holds the property in trust or whether it wholly belongs to him. I am of the view that this application is best decided on a balance of convenience and that the status quo needs to be preserved pending hearing and determination of the suit.
5. I therefore order as follows :-
(i) That the current status quo as to occupation of the land parcel Kabazi/Munanda/66 be preserved until the conclusion of this suit.
(ii) That there is hereby issued and order of inhibition, barring the registration of any disposition, in the register of the land parcel Kabazi/Munanda/66.
(iii) Costs of this application shall be costs in the cause.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 22nd day of October 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mr Murimi holding brief for M/s Njeri Njagua & Co. Advocates for the plaintiff/applicants
N/A for defendant /respondent
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT AT NAKURU