[2016] KEHC 5835 (KLR)
The court found that the application was incompetent because it sought injunctive relief over land parcels that were not pleaded or claimed in the plaint. The plaintiff's suit only placed parcel 4523 in dispute, but the application introduced numerous other parcels (4533, 6243–6258) which were not the subject of the...
Source-derived case information.
- Citation
- [2016] KEHC 5835 (KLR)
- Parties
- Plaintiff: M'Ndegwa M'Nabea; Defendant: Isaiah Kilemi (as legal representative of the Estate of M'itaru M'lingera - Deceased); Defendant: Reuben Nchana; Defendant: Nicholas Kalunge; Defendant: Maria Nkirote; Defendant: Stella Karimi; Defendant: Florence Mwari; Defendant: Richard Ntombura; Defendant: Wilson Kamwiko; Defendant: James Kathaiai Mutunga
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 145 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Proprietary Rights, Land Adjudication, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Ndegwa M'Nabea
Plaintiff
Isaiah Kilemi (as legal representative of the Estate of M'itaru M'lingera - Deceased)
Defendant
Reuben Nchana
Defendant
Nicholas Kalunge
Defendant
Maria Nkirote
Defendant
Stella Karimi
Defendant
Florence Mwari
Defendant
Richard Ntombura
Defendant
Wilson Kamwiko
Defendant
James Kathaiai Mutunga
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to temporary injunctive orders restraining the defendants from interfering with his use and occupation of specified land parcels pending hearing and determination of the suit.
- 2 Whether the inclusion of land parcels not pleaded in the plaint renders the application incompetent.
Ratio Decidendi
The court found that the application was incompetent because it sought injunctive relief over land parcels that were not pleaded or claimed in the plaint. The plaintiff's suit only placed parcel 4523 in dispute, but the application introduced numerous other parcels (4533, 6243–6258) which were not the subject of the suit. The court held that it could not grant orders in respect of matters not properly before it, as this would be beyond its jurisdiction at the interlocutory stage. The application was therefore dismissed in its entirety for being unmeritorious and incompetent.
Court Disposition
application dismissed
Orders
- The application dated 24/09/2014 is dismissed in its entirety.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
E&L CASE NO. 145 OF 2014
M'NDEGWA M'NABEA....................................................................................................PLAINTIFF
VERSUS
ISAIAH KILEMI (sued as the legalRepresentative of the Estate of M'ITARU M'LINGERA -Deceased) ........................1ST DEFENDANT/RESPONDENT
REUBEN NCHANA............................................................. ....2ND DEFENDANT/RESPONDENT
NICHOLAS KALUNGE ….........................................................3rd DEFENDANT/RESPONDENT
MARIA NKIROTE.....................................................................4TH DEFENDANT/RESPONDENT
STELLA KARIMI......................................................................5TH DEFENDANT/RESPONDENT
FLORENCE MWARI................................................................6TH DEFENDANT/ RSPONDENT
RICHARD NTOMBURA............................................................7TH DEFENDANT/RESPONDENT
WILSON KAMWIKO...............................................................8TH DEFENDANT/RESPONDENT
JAMES KATHAIAI MUTUNGA ..............................................9TH DEFENDANT/RESPONDENT
R U L I N G
This application is dated 24/09/2014 and seeks orders:-
That the application because of its nature be certified urgent and the same be heard ex-parte in the 1st instance.
That Honourable Court be pleased to issue a temporary order of injunction restraining the 2nd defendant by himself, his agents, assigns or persons claiming under him from entering into, fence off and or in anyway interfere with the plaintiff's use and or proprietary rights over land parcel No. KIANJAI ADJ. Section/4523 pending the hearing and determination of this application.
That the Honourable Court be pleased to issue a temporary order of injunction restraining the 2nd defendant by himself, his agents, assigns or persons claiming under him from entering into, fence off and or in anyway interfere with the plaintiff's use and or proprietary rights over land parcel No. Kianjai Adj. Section/4523 pending the hearing and determination of this suit.
That the Honourable Court be pleased to issue interim orders of injunction restraining the defendants by themselves , their agents, assigns and or persons claiming under them from sub dividing, alienating, selling and or transferring land parcel Kianjai Adj. Section 4523, 4533, 6243, 6244, 6245, 6246, 6247, 6248, 6249, 6250,6251,6252, 6253, 6254, 6255, 6256, 6257 and 6258 and or in anyway interfere with the plaintiff's use, occupation and or proprietary rights over the same pending the hearing and determination of this application inter-parties.
That the Honourable Court be pleased to issue interim orders of injunction restraining the defendants by themselves, their agents, assigns and or persons claiming under them from subdividing , alienating, selling and or transferring land parcels Kianjai Adj. Section 4523, 4533, 6243, 6244, 6245, 6246, 6247, 6248, 6249, 6250,6251,6252, 6253, 6254, 6255, 6256, 6257 and 6258 and or in anyway interfere with the plaintiff's use occupation and or proprietary rights over the same pending the hearing and determination of this suit.
That these orders once issued be served upon the District Land Adjudication and Settlement Officer-Tigania West for compliance.
That costs of this application be costs in the cause.
The application is buttressed by the affidavit of M'NDEGWA M'NABEA and has the following grounds:-
The Plaintiff who is aged about 80 years has all his lifetime lived, cultivated and occupied land parcel 4523 and 4533 Kianjai Adj. Section.
That 1st defendant with intent to defeat the Plaintiff's interest has transferred Parcel No. 4523 to the 2nd Defendant.
That land parcel 4523 was a subject in a Court case to wit Tigania Civil Case No. 132/2010.
The Defendant in Tigania Civil Case 132 of 2010 M'ITARU M'LINGERA now deceased was father to the 1st defendant.
Land parcel No. 4523 was transferred during the pendency of Tigania Civil case.
The 2nd defendant to whom land parcel No 4523 was transferred is interfering with the Plaintiff (sic) use and occupation of the same and threatening eviction.
The 1st Defendant's father now deceased clandestinely and with fraudulent intention subdivided land parcel No. 4533 into 16 portions which he transferred to his children and close family members.
The plaintiff stands to suffer irreparably and no amount of damage can compensate.
Defendants stand to suffer no prejudice as none of them are either in use or occupation.
The parties have put in Written Submissions. They have postulated diametrically opposed assertions regarding ownership and occupation of Land parcel No. 4523, Tigania Adjudication area. The 2nd Defendant has submitted that he bought parcel No. 4523 from the 1st defendant and when he bought it there were no restrictions restraining any transfer or other dealings with the suitland. He avers that he is a purchaser for value. He even claims that at the time he fenced parcel No 4523, it is the Plaintiff who showed him the boundaries.
At this stage, I am unable to make any determination with respect to the conflicting assertions proffered by the parties. This can only be done after the suit is heard in full.
The plaint in this suit places in dispute parcel No 4523 only. This application has parcel Nos: 4523, 4533, 6243, 6244, 6245, 6246, 6247, 6248, 6249, 6250,6251,6252, 6253, 6254, 6255, 6256, 6257 and 6258. The Plaintiff does not claim that parcel Numbers 6243 to 6258 are Subdivisions of parcel No. 4523. In his statement the Plaintiff says that they were subdivisions of parcel no. 4533. This application is rendered unmeritorious by the introduction of parcels of land which are not alluded to in the plaint.
I opine that introduction of parcels of land not claimed in the plaint is beyond matters validity within the ambit of what this Court can determine. for this reason, I find the application incompetent. It is therefore dismissed in its entirety.
Costs shall be in the cause.
It is so ordered.
Delivered in Open Court at Meru this 30th day of March, 2016 in the presence of:
CC: Daniel/Lilian
P. M. NJOROGE
JUDGE