[2012] KEHC 1407 (KLR)

REPUBLIC OF KENYA

High Court at Eldoret

Civil Case 48 of 2007 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>

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NYARINGO OBURE………….......................................PLAINTIFF

VERSUS

JAMES KURIA………………..............................1ST DEFENDANT

WILSON KIPKEMBOI CHRUIYOT…….............2ND DEFENDANT

KUNGU NG’ANG’A.………...................................3RD DEFENDANT

RULING

Before me for determination is an application dated 15th March, 2007 filed under a certificate of urgency. The application is supported by the affidavit of one Nyaringo Obure sworn on 1th March, 2007.

The application seeks substantive prayers, to wit;

(ii) pending the hearing of this application inter partes, the Defendants, their agents and/or servants be restrained by way of injunction from entering, constructing on, ploughing, cultivating, fencings, wasting, interfering with, selling, alienating or in any other manner whatsoever dealing with parcel of land known as title number UASIN GISHU/NGENYILEL/224.

(iii) the Defendants, their agents and/or servants to restrained by temporary injunctions from entering, constructing on, ploughing, cultivating, fencings, wasting, interfering with, selling, alienating or in any other manner whatsoever dealing with parcel of land known as title number UASIN GISHU/NGENYILEL/224 pending the hearing and determination of this suit.

Annexed to the application is a Memorandum of Agreement of Sale dated 18th August, 1978 between one Mrs. Gachiku Ng’ang’a (now deceased) and the Plaintiff. The Memorandum of Agreement is for Sale of plot 224. Ngenyilel Scheme No.55 measuring 32. 6 acres. Also annexed to the said supporting affidavit are; the letter of consent from the Land Control Board dated 18th November, 1978; undated transfer and the title deed in the name of the Plaintiff issued on 3rd August, 2005.

The application is opposed and the 1st Defendant has filed a replying affidavit sworn on the 28th March, 2007 and a further affidavit sworn on the same date. The 1st Defendant similarly annexed several documents that included, inter alia the death certificate of the late Maria Wanjiku Ng’ang’a (the Vendor in the memorandum of Agreement of Sale). The documents were in opposition to the application before me.

The Plaintiff’s case as I understood it, is that he purchased the suit property from the deceased, paid the purchase price and took possession in 1999. According to the Plaintiff, he has been in continuous and uninterrupted possession of the suit land until 1992 when the Plaintiff leased the land to one Francis Amon Naveye. The Lessee cultivated the land until 2004 when the Defendants forcefully moved into the land and cut trees. Since then occupation of the land has not been peaceful and uninterrupted.

It is the Plaintiff’s contention that he is the lawful and registered proprietor of the suit land and the Defendants have no right to interfere with his property.

The 1st Defendant on the other hand deponed that the suit land belonged to their late mother. They were in possession until 1992 when they were forced to move out albeit shortly following land clashes that rocked the country. He further submitted that the Plaintiff used police to harass them and charge sheets in support of the claim were produced. The Defendants challenged the Land Control Board’s consent which it was claimed was not accompanied by the minutes.

According to the 1st Defendant, the memorandum of Agreement of Sale is not an Agreement for Sale and the transfer is defective. The defect is however, not pointed out.

I have considered the submissions filed before me. The Plaintiff exhibited the title deed issued under the provisions of Cap 300. Sec. 28 provides:

“The rights of a proprietor whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court shall not be liable to be defeated except as provided in this Act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto free from all other interests and claims whatsoever”.

The above provisions entitle the Plaintiff to stake a claim to the suit property. Possession of the suit property was contested. To reach a final determination on this issue, it will be necessary to take evidence from the parties.

For purposes of this interlocutory application, I am only required to find out if the Plaintiff has met the conditions set out in Giella Vs Cassman Brown Co. Ltd (1973) E A. 358, page 360. The conditions are trite and l need not rehash them.

I find that the interest of justice dictates that I grant the application in terms of prayers 3. The Plaintiff is ordered to comply with Order 11 and set down the suit for hearing within the next 60 days. Costs in the cause.

Order accordingly.

Dated AND signed at Nairobi on this 23RD day of AUGUST 2012.

M. K. Ibrahim

Judge

DATED AND Delivered at Eldoret on this 10TH day of OCTOBER 2012.

F. AZANGALALA

Judge

In the presence of : Mr. Anditi for the Plaintiff.