[2018] KEELC 4067 (KLR)
The court found that the Plaintiff was the registered proprietor of the suit land and had sub-divided it among his sons and himself, with the Defendant agreeing to the mode of division. The Defendant did not deny that the Plaintiff was living on the suit land or that he was the one who divided the land. The...
Source-derived case information.
- Citation
- [2018] KEELC 4067 (KLR)
- Parties
- Plaintiff: Mwania Ngunga; Defendant: Mutuku Mwania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 216 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Temporary Injunction, Land Ownership Dispute, Subdivision of Land, Eviction, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwania Ngunga
Plaintiff
Mutuku Mwania
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of a temporary injunction restraining the Defendant from dealing with or evicting the Plaintiff from the suit land.
- 2 Whether the Defendant unlawfully combined his portion of land with that of the Plaintiff, thereby depriving the Plaintiff of his share.
- 3 Whether the Plaintiff is entitled to protection of his possession and occupation of the suit land pending determination of the main suit.
Ratio Decidendi
The court found that the Plaintiff was the registered proprietor of the suit land and had sub-divided it among his sons and himself, with the Defendant agreeing to the mode of division. The Defendant did not deny that the Plaintiff was living on the suit land or that he was the one who divided the land. The Assistant County Commissioner's report supported the Plaintiff's position. The court held that it was unlikely the Plaintiff would have given out all the land to his sons and left nothing for himself. On this basis, the court concluded that the Plaintiff had established a prima facie case with a probability of success and was entitled to a temporary injunction restraining the Defendant...
Court Disposition
application allowed
Orders
- A temporary injunction is issued restraining the Defendant, his servants and/or agents from dealing with Land Parcel No. Mitaboni/Miumbuni Ngoleni/556 and Land Parcel No. Mitaboni/Miumbuni Ngoleni/4958 and from evicting the Plaintiff from the said land pending the hearing and determination of the main suit.
- Costs of the application to the Plaintiff.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 216 OF 2017
MWANIA NGUNGA ....................................................PLAINTIFF
VERSUS
MUTUKU MWANIA ................................................DEFENDANT
RULING
1. Vide his Application dated 10th May, 2017, the Plaintiff is seeking for temporary injunctive orders in the following terms:
a. An order of temporary injunction be issued against the Respondent by himself, his servants and/or agents restraining them from dealing with the Land Parcel No. Mitaboni/Miumbuni Ngoleni/556 and Land Parcel No. Mitaboni/Miumbuni Ngoleni/4958 and evicting the Plaintiff/Applicant from the said land pending the hearing and determination of the main suit.
b. Costs of this Application.
2. The Application is premised on the Affidavit of the Plaintiff who has deponed that he is the registered proprietor of parcel of land known as Mitaboni/Miumbuni Ngoleni/556 (the suit land); that on 13th March, 2001, he sub-divided his land into three portions, one for himself and the other two for his sons, including the Defendant and that the Defendant unilaterally caused his portion to be combined with his thus creating parcel number 4958.
3. The Plaintiff has deponed that the Defendant has threatened to evict him from the suit land.
4. In his Replying Affidavit, the Defendant deponed that the Plaintiff sub-divided his land being parcel number 556; that he allocated him parcel number 4958 and retained parcel number 556 and that the Applicant was persuaded by his daughter to file the current pleadings.
5. The Plaintiff’s advocate submitted that the Defendant has grabbed the Plaintiff’s portion of land and combined with his share.
6. On the other hand, the Defendant’s counsel submitted that the Defendant obtained his title legally after the Plaintiff voluntarily sub-divided his parcel of land amongst his children.
7. The evidence before me shows that the Plaintiff was registered as the proprietor of parcel of land known as Mitaboni/Miumbuni Ngoleni/556 measuring 0. 14Ha on 15th April, 2015.
8. According to the Plaintiff, he had sub-divided his land into three portions whereby he retained one portion, gave the Defendant one portion and gave his other son the remaining portion. The proceedings of the way the Plaintiff sub-divided the land shows that the Defendant agreed to this mode of division of the land.
9. The sentiments of the Plaintiff are supported by the report of the Assistant County Commissioner, Kathiani Ward, who after hearing the dispute, informed the Land Adjudication Officer to revert land parcel number 4958 to the Plaintiff.
10. The Defendant has not denied that indeed it is his father, the Plaintiff, who divided the land. It is therefore unlikely that he gave out the land to his two sons and left nothing for himself.
11. That being the case, and considering that the Defendant has not denied that the Plaintiff is indeed living on the suit land, I find that the Plaintiff has established a prima facie case with chances of success.
12. I therefore allow the Application dated 10th May, 2017 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE