[2006] KEHC 1018 (KLR)
The court found that the applicants had not established any act by the respondent indicating an imminent threat to convert the suit land into her name to the detriment of other family members. There was a restriction registered against the suit land, which already prevented any dealings without due process and the...
Source-derived case information.
- Citation
- [2006] KEHC 1018 (KLR)
- Parties
- Applicant: Nahason Mukundi Ngunyi; Applicant: Another (2nd Applicant); Respondent: Ruth Kahungi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1028 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Interlocutory Injunctions, Family Land Disputes, Trusts in Land, Jurisdiction of Tribunals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahason Mukundi Ngunyi
Applicant
Another (2nd Applicant)
Applicant
Ruth Kahungi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the respondent from interfering with the suit land pending determination of the application and suit.
- 2 Whether the existence of a restriction and a pending tribunal dispute precludes the grant of injunctive relief by the High Court.
Ratio Decidendi
The court found that the applicants had not established any act by the respondent indicating an imminent threat to convert the suit land into her name to the detriment of other family members. There was a restriction registered against the suit land, which already prevented any dealings without due process and the respondent's involvement. Furthermore, a dispute involving the same parties and subject matter was pending before the North Kinangop Division Tribunal, and it was not clear whether the matter had been referred to the Tribunal by consent. If so, the parties were bound to await the outcome of the tribunal process before seeking relief from the High Court. The applicants therefore...
Court Disposition
application dismissed
Orders
- The plaintiffs' Chamber Summons dated 27th September 2006 is dismissed.
- No interlocutory injunction is granted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Misc Appli 1028 of 2006
NAHASON MUKUNDI NGUNYI & ANOTHER….........………………….APPLICANT
VERSUS
RUTH KAHUNGI….……………………………………..……………...RESPONDENT
RULING
This is an application under Order XXXIX Rules 1(a) and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking two orders:
1. An injunction to restrain the defendant by herself, her representatives, agents, employees and/or any other person from interfering with the plaintiffs’ land parcel No. 2117 and 2306 OLARAGRWA SCHEME in any way pending the determination of this application.
2. An injunction to restrain the defendant by herself, her representatives, agents, employees and/or any other person from interfering with the plaintiffs’ land parcel No.2117 and 2306 OLARAGWA SCHEME in any way until the determination of this suit.
The application is based on the grounds that:
a) The plaintiffs are in occupation of the suit land.
b) The 1st plaintiff is the registered owner of the suit land in trust for members of the family and
c) The circumstances of this case dictate that it is only fair and just that orders sought be granted.
The application is also supported by an affidavit sworn by the 2nd applicant in which he avers that the suit land is a family land and the 1st applicant is the registered proprietor in trust for the members of the family; that the defendant is their sister, that the defendant wants to convert the land into her name to the detriment of the other family members.
The defendant is using the Tribunal to harass the family members. The applicant has attached a search certificate which shows that the suit land is registered in the name of the first plaintiff Nahashon Mukundi Ngunyi and there is restriction registered against the suit property which prohibits any dealing with the suit land without involving the defendant Ruth Wathaiya Kahungi. There is also an annexure marked HT II, which indicates that there is a dispute pending before the North Kinangop Division Tribunal between the same parties being Cause No. 23 of 2006. But it is not clear from the record whether the dispute was referred to the Tribunal by the court or not. This being a dispute over family land the same could have been referred to the Tribunal by consent. If that is the position and if the dispute was referred to the Tribunal by consent, then the same dispute could not come to court before that process is finalized.
The parties having surrendered to that jurisdiction they ought to have participated to its conclusion and any aggrieved party could only come to the High Court to challenge the decision of the Tribunal on a point of law. Otherwise at this stage the applicants have not established that the defendant has done anything to indicate that she wants to convert the suit land into her name to the detriment of the family members. Further there being a restriction registered against the suit land, no party can deal with the suit land without following the due process of the law.
For the above reason, I decline to issue the orders sought in the plaintiffs’ Chamber Summons dated 27th September 2006.
Dated and delivered at Nairobi this 30th day of October 2006
J.L.A. OSIEMO
JUDGE