[2007] KEHC 2759 (KLR)
The court found that the applicant had established a prima facie interest in the suit land, having caused it to be registered in the respondent's name due to allocation policy constraints. The respondent's admission of subdivision and sale of some parcels, and the risk of further disposition before the suit is...
Source-derived case information.
- Citation
- [2007] KEHC 2759 (KLR)
- Parties
- Plaintiff: M’Muraa M’Kiorone alias M’Muraa M’Kiorone; Defendant: Gachiata Kiorone alias Joseph Gacieta
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 76 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Inhibition Orders Pending Hearing
- Outcome
- Inhibition order granted pending hearing and determination of the suit.
- Legal Topics
- Trusts Over Land, First Registration, Land Adjudication, Inhibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Muraa M’Kiorone alias M’Muraa M’Kiorone
Plaintiff
Gachiata Kiorone alias Joseph Gacieta
Defendant
Procedural Posture
Civil Case / Ruling on Application for Inhibition Orders Pending Hearing
Legal Issues
- 1 Whether the applicant has established a sufficient interest in the suit land to warrant inhibition orders.
- 2 Whether the applicant stands to suffer irreparable loss if inhibition is not granted.
- 3 Whether the respondent holds the suit land in trust for the applicant.
Ratio Decidendi
The court found that the applicant had established a prima facie interest in the suit land, having caused it to be registered in the respondent's name due to allocation policy constraints. The respondent's admission of subdivision and sale of some parcels, and the risk of further disposition before the suit is heard, posed a real threat of irreparable loss to the applicant. The balance of convenience favored preserving the status quo by issuing inhibition orders to prevent further dealings with the land until the substantive dispute is resolved. The court therefore granted the inhibition order pending the hearing and determination of the main suit.
Court Disposition
Inhibition order granted pending hearing and determination of the suit.
Orders
- An order of inhibition shall issue pending the hearing and determination of this suit.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU Civil Case 76 of 2004
M’MURAA M’KIORONE ALIAS M’MURAA M’KIORONE….......PLAINTIFF
VERSUS
GACHIATA KIORONE ALIAS JOSEPH GACIETA ……… DEFENDANT
RULING
The applicant was granted temporary inhibition orders against the respondent in this application. This ruling relates to interpartes arguments made before me on 29th March, 2007. It is the applicant’s case that he gathered and registered land parcel No.Nyaki/Giaki/634 but caused the same to be registered in the name of the respondent, who is his younger brother.
That later the latter sub-divided the said parcel of land into 9 parcels, namely, Nyaki/Giaki/2528 to Nyaki/Giaki/2526. That the respondent has disposed of Nyaki/Giaki/2523 and Nyaki/Giaki/2524.
The applicant further states that since the filing of this suit the respondent has embarked on selling the rest of the parcels. It may be noted that the applicant is seeking in the main suit a declaration that the respondent is holding the suit land in trust for him (the applicant), and an order that the sub-division of the suit land was a nullity, among other reliefs.
The respondent has filed a replying affidavit in opposition to this application. He has maintained that the suit land is his, being the first registered owner. That the applicant has his own land separate from the suit land. The respondent says that in the circumstances, he cannot be a trustee of the applicant in respect of the suit land.
The applicant and the respondent are brothers. The applicant has explained in both this application and the plaint that he gathered, during land adjudication and consolidation, the suit land and since it was a policy of the allocating committee that those already with land should not be registered in the settlement scheme.
From what I understand the applicant to be saying, he opted to have the suit land registered in the name of the respondent to hold in trust for him.
In an application for inhibition orders, the applicant must establish his interest in the subject matter. He must also show that he stands to suffer irreparable loss not capable of compensation if inhibition is not ordered.
The applicant, in my view, has established that it is him who caused the suit land to be registered in the name of the respondent. Although the respondent maintains that he has no intention of disposing of the suit land, he has admitted that he has sub-divided it with the intention of distributing to his sons. He has, of course, not responded to the allegation that he has sold two parcels to third parties. Whatever the case any transfer of any of the parcels before the suit herein is heard will prejudice the applicant.
For these reasons it is hereby ordered that the order of inhibition shall issue pending the hearing and determination of this suit.
Costs will be in the cause.
DATED AND DELIVERED AT MERU THIS 18th DAY OF May, 2007
W. OUKO
JUDGE