[2017] KEELC 2596 (KLR)
The court found that the plaintiffs had established a prima facie case with a probability of success by demonstrating that they purchased the suit land from the defendant in 1991, have been in possession since then, and that the defendant handed over relevant documents to them. The defendant failed to respond or...
Source-derived case information.
- Citation
- [2017] KEELC 2596 (KLR)
- Parties
- Plaintiff: Munyua Gachuhi; Plaintiff: Mburu Ndua; Defendant: Michael Ndiwa Kimtai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 38 of 2017
- Procedural Posture
- Land Case / Ruling on Interim Injunction Application
- Outcome
- interim injunction granted
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Transfer of Land, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munyua Gachuhi
Plaintiff
Mburu Ndua
Plaintiff
Michael Ndiwa Kimtai
Defendant
Procedural Posture
Land Case / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of a temporary injunction restraining the defendant from transferring Plot No. 56 in Kapkoi Settlement Scheme into his name pending the hearing and determination of the suit.
- 2 Whether the plaintiffs would suffer prejudice if the land is registered in the defendant's name before the suit is determined.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case with a probability of success by demonstrating that they purchased the suit land from the defendant in 1991, have been in possession since then, and that the defendant handed over relevant documents to them. The defendant failed to respond or contest the application despite being served. In the absence of any explanation or opposition from the defendant, and given the risk of prejudice to the plaintiffs if the land is transferred to the defendant before the suit is determined, the court held that the plaintiffs are entitled to an interim injunction restraining the defendant from effecting the transfer of Plot No. 56 in...
Court Disposition
interim injunction granted
Orders
- An order of interim injunction is granted restraining the respondent or his agents from effecting the transfer of Plot No. 56 in Kapkoi Settlement Scheme into his name or taking any action to further such transfer pending the hearing and determination of this suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 38 OF 2017
MUNYUA GACHUHI………………………....………….1STPLAINTIFF
MBURU NDUA…………………………………………2ND PLAINTIFF
VERSUS
MICHAEL NDIWA KIMTAI………………….......…………DEFENDANT
R U L I N G
1. The plaintiff in this suit filed an application dated 1/3/2017 seeking interim orders on a temporary injunction restraining the defendant/respondent from effecting the transfer of Plot No. 56 in Kapkoi Settlement Schemeinto his name pending hearing and determination of this application and the main suit.
2. An interim order of injunction was issued by this court on 2/3/2017 when the matter came up under certificate of urgency. That order has been extended twice in the absence of the respondent who, despite service has never entered appearance or filed any defence to the suit or filed any defence to the suit or the application dated 1/3/2017. That application and the suit are, this far, unopposed.
3. The applicants’ case is that they purchased the Plot No. 56inKapkoi Settlement Scheme in1991 and that they have been in possession ever since.The applicants have learnt that the respondent has now obtained a discharge and is in the process of registering himself as the owner of the land. They therefore plead that they would be prejudiced in the event the land was so registered in the respondent’s name.
4. The applicants have exhibited an agreement dated 19/10/1991 vide which the respondent apparently sold the land to them. They have also exhibited the letter of allotment in the respondent’s name and a charge, also in the respondent’s name. They aver that these documents were handed over to them by the respondent upon the execution of the agreement dated19/10/1991.
5. In short there is no explanation by the respondent. I find that the applicants have proved that they have a prima facie case with a probability of success. I therefore grant an order of interim injunction restraining the respondent or his agents from effecting the transfer of Plot No. 56 in Kapkoi Settlement Scheme into his name or taking any action to further such transfer pending the hearing and determination of this suit.
Signed, dated and delivered at Kitale on this 30th day of May, 2017.
MWANGI NJOROGE
JUDGE
30/05/2017
Before - Mwangi Njoroge Judge
Court Assistant - Isabellah
Ms. Munialo for Applicants
Ruling read in open court.
MWANGI NJOROGE
JUDGE
30/05/2017