[2014] KEHC 5591 (KLR)
The court found that the Applicant failed to provide documentary evidence connecting the Respondents to the land parcels in question or to the act of lodging the restriction. The official searches provided by the Respondents showed that the restriction was lodged by the Provincial Commissioner, not the Respondents....
Source-derived case information.
- Citation
- [2014] KEHC 5591 (KLR)
- Parties
- Applicant: Mulondanome Kapchanga Wekesa; Respondent: David Wabwoba Mukhanya; Respondent: Martin Simiyu Mukhanya; Respondent: Joseph Nyongesa Mukhanya
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 105 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Land Restrictions, Ownership Disputes, Vesting Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mulondanome Kapchanga Wekesa
Applicant
David Wabwoba Mukhanya
Respondent
Martin Simiyu Mukhanya
Respondent
Joseph Nyongesa Mukhanya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion
Legal Issues
- 1 Whether the restriction placed on land parcels W. Bukusu/S. Myanga/3186 and 3187 should be quashed or removed.
- 2 Whether the Respondents were the parties who lodged the restriction on the suit parcels.
- 3 Whether the Applicant established a legal connection to the suit parcels sufficient to warrant the orders sought.
Ratio Decidendi
The court found that the Applicant failed to provide documentary evidence connecting the Respondents to the land parcels in question or to the act of lodging the restriction. The official searches provided by the Respondents showed that the restriction was lodged by the Provincial Commissioner, not the Respondents. The Applicant did not file a further affidavit to clarify the discrepancies in parcel numbers or ownership. As the parties against whom the orders were sought were neither the owners nor the ones who lodged the restriction, and as the Provincial Commissioner or Attorney General were not joined as parties, the application was found to be without merit and dismissed with costs to...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application is dismissed with costs to the Respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 105 OF 2013
[FORMERLY MISC. CIVIL APPEAL NO. 7 OF 2012]
MULONDANOME KAPCHANGA WEKESA..................APPLICANT
VERSUS
DAVID WABWOBA MUKHANYA
MARTIN SIMIYU MUKHANYA
JOSEPH NYONGESA MUKHANYA.....................RESPONDENTS
RULING
1. The ApplicantMulondanome Kapchanga Wekesa has by Notice of Motion dated 13th February 2012 has sued the Respondents seeking for orders;
“That the restriction lodged and or placed on land parcel originally known as W. Bukusu/S.Myanga/1115 and subsequently subdivided into W. Bukusu/S. Myanga/3186 and 3187 by the Respondents be quashed and or removed. He prayed for costs of the application to be in the cause.”
2. The motion is supported by the grounds on the face of it and the affidavit sworn by the applicant. The Applicant depones he is the bonafied land owner of L.R. W. Bukusu/N. Myanga/115. He obtained a vesting order vide Land Disputes Tribunal case No. 7 of 2001 which the Respondents have never set aside or appealed against. Finally it is his case that the Respondent's action of lodging the caution on the parcels is malicious, ill motivated and only meant to disrupt the Applicants transfer process.
3. The Application is opposed. The 2nd & 3rd Respondents filed a replying affidavit. They depone this application is misconceived. They are heirs to L.R. W. Bukusu/S. Mateka/1115 which they shared out in 1999 as follows;
(a). W. Bukusu/S. Mateka/3185 – David Wabomba Mukhanya
(b). W. Bukusu/S. Mateka/3186 – Martin Simiyu Mukhanya
(c). W. Bukusu/S. Mateka/3187 – Joseph Nyongesa Mukhanya
4. They all obtained titles to their respective parcels on 23. 12. 1999. They annexed to their replying affidavit certificates of official searches. They also depone at paragraph 6 that the Applicant is claiming L.R. W. Bukusu/S. Myanga/1115 which is a different parcel and there is no evidence of a vesting order or that the restriction was placed by the Respondents. They urged the court to dismiss the application with costs.
5. I have considered the submissions filed by the Applicant and taken into account issues raised in the pleadings herein. The Applicant in his pleadings and submissions refers to land parcel No W. Bukusu/S. Myanga /1115 which was later subdivided to W. Bukusu/S. Myanga/3185, 3186 and 3187. He only annexed the vesting order dated 4th October 2004 referring to the same piece of land. He did not annex Certificate of Official Search (es) for these parcels of land.
6. The Respondents have on their part annexed official searches for W. Bukusu/S. Mateka/3185, 3186 and 3187 showing title was issued in their names. The parcels are totally and entirely different from the one the Applicant is making reference to. The Applicant did not file a further affidavit to explain the diversity. In the absence of any document connecting the Respondent to the land L.R. No. W. Bukusu/S. Mateka /1115 or subsequent nos 3185, 3186 and 3187 this application fails.
7. In the event land parcel L.R. W. Bukusu/S. Myanga/3186 & 3187 is the same as W. Bukusu/S. Mateka/3186 & 3187 which is highly unlikely, the claim against the Respondent still fails. The Applicant is accusing the Respondent of lodging cautions on the suit parcels to deny him an opportunity to procure registration in his name. The Certificate of Searches annexed for W. Bukusu/S. Mateka/3186 & 3187 reveals the restriction was lodged as a result of P.C's letter LND 16/7/Vol.11/108 dated 12th March 2008.
8. It is therefore clear the restriction was not lodged by the 2nd or 3rd Respondents as pleaded by the Applicant. The Provincial Commissioner or the Attorney General was not party to this application. The orders cannot be issued against persons who are not parties to suit without giving them a chance to be heard. The Applicant thus wrongly sued the Respondents as they neither lodged the caution nor are they owners of the suit parcels W. Bukusu/S. Myanga/3186 & 3187 quoted in the application.
9. There was no claim made on title W. Bukusus/S. Mateka/3185. In the result, the application is found to be without merit and is dismissed with costs to the Respondents.
DATED, SIGNED and DELIVERED this 3rd day of March 2014.
A. OMOLLO
JUDGE.