[2014] KEHC 2764 (KLR)
The court found that while the 1st respondent is the registered owner of the suit land and entitled to sell a portion of it, the applicants are in actual occupation and their continued residence should be protected pending the full hearing of the suit. The court determined that the balance of convenience favours...
Source-derived case information.
- Citation
- [2014] KEHC 2764 (KLR)
- Parties
- Applicant: Pamela Naliaka Makokha; Applicant: Phanice Ayuma Karupa; Respondent: Mutimba Lutoma; Respondent: James Biketi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 176 of 2013
- Procedural Posture
- Land and Environment Case / Interlocutory Application for Injunction
- Outcome
- Interlocutory injunction granted in part; applicants to remain in occupation pending suit determination; other prayers deferred.
- Judges
- SJ Chitembwe
- Legal Topics
- Injunctions, Eviction, Ownership Disputes, Co Ownership Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamela Naliaka Makokha
Applicant
Phanice Ayuma Karupa
Applicant
Mutimba Lutoma
Respondent
James Biketi
Respondent
Procedural Posture
Land and Environment Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the respondents from interfering with their occupation of the suit land pending determination of the suit.
- 2 Whether the applicants have established a prima facie case for the grant of an injunction.
- 3 Whether the 1st respondent, as registered owner, can lawfully sell part of the land during the pendency of the suit.
Ratio Decidendi
The court found that while the 1st respondent is the registered owner of the suit land and entitled to sell a portion of it, the applicants are in actual occupation and their continued residence should be protected pending the full hearing of the suit. The court determined that the balance of convenience favours maintaining the applicants' occupation to prevent possible irreparable harm from eviction. Accordingly, the court granted an injunction restraining the respondents from evicting or interfering with the applicants' occupation of the portion of the land they currently occupy, but allowed the 1st respondent to sell two acres to the 2nd respondent provided it does not include the...
Court Disposition
Interlocutory injunction granted in part; applicants to remain in occupation pending suit determination; other prayers deferred.
Orders
- The 1st defendant is at liberty to sell two acres to the 2nd defendant provided those two acres do not include the portion occupied by the applicant.
- The defendants are restrained from evicting or interfering with the plaintiff's occupation of part of the suit land pending determination of the suit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
LAND & ENVIRONMENT CASE NO: 176 OF 2013
PAMELA NALIAKA MAKOKHA...........................................1st APPLICANT
PHANICE AYUMA KARUPA................................................2ND APPLICANT
VERSUS
MUTIMBA LUTOMA.......................................................1ST RESPONDENT
JAMES BIKETI.................................................................2ND RESPONDENT
R U L I N G
The plaintiff’s application dated 11/6/2013 is seeking several orders including an order of injunction restraining the defendants from interfering with her peaceful occupation of plot number NORTH KABRAS/SURUNGAI/621 pending the hearing and determination of this suit. The application is supported by her affidavit sworn on the same date.
The defendants swore a joint affidavit on 25/7/2013. Counsels for both parties agreed to rely on the application and replying affidavit. The applicant contends that she was married to the first respondent’s grandson. She had one child with the 1st respondent’s grandson who is the 2nd applicant. The 1st applicant’s husband is now deceased. She has been living on the suit land with her child but the defendants have threatened her with eviction. She would like to be registered as a co-owner to the property.
On their part the respondent’s maintain that the 1st respondent is the registered owner of the suit land. He has sold two acres to the 2nd respondent. The applicant was merely a girl friend to the 1st defendant’s grandson and has no lawful claim over the suit land.
The record show that the 1st applicant husband died of a road accident on 18/12/2011. It is also established that the plaintiffs live on the suit land. The entire land is 2. 8 hectares. Since the 1st respondent is the registered owner of the land, he has the right to sell a portion of the land. He contends that he has sold two acres to the 2nd defendant. The defendants seem to deny that they intend to evict the applicant from the suit land.
Having some through the plaintiff’s application, I do find that most of the orders can only be granted after a full hearing. All what is relevant at this moment is for the applicant to continue living on the suit land pending the determination of this suit.
In the end, I do find that the 1st defendant is at liberty to sell two (2) acres to the 2nd defendant provided that those two acres do not include the portion occupied by the applicant. The application dated 11/6/2013 is granted in terms of prayer (c) only but it is only limited to restraining the defendants from evicting or interfering with the plaintiff’s occupation of part of the suit land. The other prayers shall wait for the hearing of the main suit. Costs shall also await the outcome of the main suit.
Dated, delivered and signed at Kakamega this 17th day of September 2014
SAID J. CHITEMBWE
JUDGE