[2010] KEHC 710 (KLR)
The court found that there was evidence the applicant and his family had lived on the suit land for an unclear period, and the applicant may not be a stranger to the land as claimed by the respondent. There was no evidence that the applicant was party to the agreement for his family to vacate the land. The court...
Source-derived case information.
- Citation
- [2010] KEHC 710 (KLR)
- Parties
- Applicant: Musa Injira Chekuku; Respondent: Francis Khatera Chimasia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 2010
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Status quo order granted; applicant to remain in occupation of ¼ acre with restrictions pending hearing of originating summons. Each party to bear its own costs.
- Legal Topics
- Adverse Possession, Injunctive Relief, Status Quo Orders, Land Occupation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Injira Chekuku
Applicant
Francis Khatera Chimasia
Respondent
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to 0.08 hectares of Butsotso/Indangalasia/3442 by adverse possession.
- 2 Whether the applicant should be restrained from interfering with the respondent's occupation, use, and enjoyment of the disputed parcel of land until the suit is heard and determined.
- 3 Whether the status quo should be maintained pending the hearing and determination of the suit.
Ratio Decidendi
The court found that there was evidence the applicant and his family had lived on the suit land for an unclear period, and the applicant may not be a stranger to the land as claimed by the respondent. There was no evidence that the applicant was party to the agreement for his family to vacate the land. The court also noted the contested question of whether the applicant had houses and crops on the land prior to the suit. In the circumstances, the fairest order was to maintain the status quo: the applicant to remain in occupation of only ¼ acre of the land, on condition that he does not erect new structures or plant new crops except subsistence crops, until the originating summons is heard...
Court Disposition
Status quo order granted; applicant to remain in occupation of ¼ acre with restrictions pending hearing of originating summons. Each party to bear its own costs.
Orders
- Status quo to be maintained: applicant to remain in occupation of only ¼ acre of the land.
- Applicant not to put up any new structure or plant any new crops except subsistence crops (maize and beans) until the originating summons is heard and determined.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE NO. 33 OF 2010
MUSA INJIRA CHEKUKU -------------- PLAINTIFF/APPLICANT
VERSUS
FRANCIS KHATERA CHIMASIA -- DEFENDANT/RESPONDENT
RULING
1. By his Originating Summons dated 9. 3.2010, Musa Injira
Chekuku seeks certain orders but primarily that he should be declared to have become entitled to 0. 08 hectares of the parcel of land known as Butsotso/Indangalasia/3442, by fact of adverse possession.While admitting that the land was registered in the names of the Defendant, Francis Khatera Chimasia, he has lived on the said portion since August 1983. That he has established a home there and would like title thereto.
2. By a Chamber Summons under S.3A and S.63 (e) of the Civil Procedure Rules, the Defendant seeks orders to restrain the Applicant from interfering with his occupation, use and enjoyment of the disputed parcel of land until the suit is heard and determined. Further that the status quo obtaining at the commencement of the suit be maintained until the suit is determined.
3. From a perusal of the Supporting Affidavit sworn on 20. 7.2010 and the Replying Affidavit sworn on 2. 8.2010, the disputed parcel of land is L. R. Butsotso/Indangalasia/307belongingto the Defendant/Applicant. That in 1982, he sold ¼ acre to the father of the Musa Injira Chekuku but because the transaction never proceeded beyond the agreement for sale, no title was ever issued to the said Chekuku.
4. According to the Applicant, he approached the Chekuku family and he agreed to buy back the same parcel of land and the family agreed to move to L.R. Nandi/Kamobo/211 and further agreed to give the Applicant vacant possession by 2. 10. 2009. That only Musa Injira Chekuku objected to the arrangement and he and the Applicant began tussling for control of the land.
5. According to Musa Injira aforesaid, he has two houses on the suit land and has planted napier grass, trees, bananas and fruits on the land. That he was never a party to the agreement for his family to move out of the land and if the orders sought are granted, then it will mean that his Originating Summons will be rendered nugatory and he would stand evicted from the land.
6. To my mind, and from the issues raised above, there is evidence that on account of the fact that the Applicant/Respondent’s father and his family had lived on the suit land for a period that is unclear, the Applicant/Respondent may not be a stranger to the land as claimed by the Respondent/Applicant. Further, there is no evidence that he was party to the agreement of his family that they should all vacate the land that his father had purchased from the Respondent/Applicant and which the latter claimed to have repossessed.
7. On the other hand, there is the contested question whether the Applicant/Respondent had any house on the land prior to the filing of this suit and whether he has napier grass, bananas, trees and fruits which he had planted many years prior to the suit being instituted.
8. In such circumstances, the fairest order to make would be that the status quo relating to the suit land be maintained i.e. the Applicant/Respondent to remain in occupation of only ¼ acre of the land on condition that he will not put up any new structure, or plant any new crops, save subsistence crops like maize and beans until the Originating Summons dated 9. 3.2010 is heard and determined.
9. In the meantime I am shortly going to give a date for hearing of the said Summons but the Application dated 20. 7.2010 is determined in the above terms.
10. Each party will bear its own costs.
11. Orders accordingly.
Delivered, dated and signed at Kakamega this 18th day of October, 2010.
ISAAC LENAOLA
J U D G E