[2015] KEHC 7160 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of an injunction. The subdivision and transfer of the land parcel Kericho/Chemagel/822 by the respondents before the confirmation of the grant in succession proceedings was prima facie illegal. The plaintiff's entitlement to 3.75...
Source-derived case information.
- Citation
- [2015] KEHC 7160 (KLR)
- Parties
- Plaintiff: Paulina Chemutai Chirchir; Respondent: Kipyegon Arap Sang; Respondent: Maria Tapsagaa Chirchir; Respondent: Unknown Respondent 3; Respondent: Unknown Respondent 4
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 56 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted
- Judges
- MA Silau
- Legal Topics
- Succession Disputes, Fraudulent Title Registration, Injunctive Relief, Land Subdivision, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paulina Chemutai Chirchir
Plaintiff
Kipyegon Arap Sang
Respondent
Maria Tapsagaa Chirchir
Respondent
Unknown Respondent 3
Respondent
Unknown Respondent 4
Respondent
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the respondents from interfering with her 3.75 acres pending determination of the suit.
- 2 Whether the subdivision and transfer of Kericho/Chemagel/822 before succession proceedings was lawful.
- 3 Whether the plaintiff has established a prima facie case for injunctive relief.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of an injunction. The subdivision and transfer of the land parcel Kericho/Chemagel/822 by the respondents before the confirmation of the grant in succession proceedings was prima facie illegal. The plaintiff's entitlement to 3.75 acres was confirmed by the succession court, and the respondents' actions in subdividing and obtaining titles prior to the succession process undermined the lawful administration of the estate. Given the lack of opposition from the respondents and the clear evidence of the plaintiff's entitlement, the court granted an order of inhibition against further dealings with the subject...
Court Disposition
injunction granted
Orders
- An order of inhibition is issued barring registration of any disposition in the register of land parcels Kericho/Chemagel/2870, 2871 and 2872 pending hearing and determination of the suit.
- There shall be no interference whatsoever on the plaintiff's assigned 3.75 acres in the original land parcel Kericho/Chemagel/822, in accordance with the confirmed grant issued in Kericho High Court Succession Cause No. 137 of 2007, pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
ENVIRONMENT AND LAND DIVISION
E.L.C CASE NO.56 OF 2014
PAULINA CHEMUTAI CHIRCHIR..............................PLAINTIFF
VERSUS
KIPYEGON ARAP SANG & 3 OTHERS........ RESPONDENTS
R U L I N G
(Application for injunction; application not opposed; plaintiff having been awarded 3. 75 acres in succession proceedings; respondents having sub-divided land and having obtained titles before the filing of succession proceedings; application for injunction allowed; there be no interference with the plaintiff's 3. 75 portion pending hearing of the suit)
The application before me is that dated 17th February, 2015 filed by the plaintiff. It is an application for injunction brought inter alia under the provisions of Order 40 Rule 1 of the Civil Procedure Rules, 2010. Essentially, the plaintiff wants the defendants restrained from entering, selling, or disposing 3. 75 acres comprised in the land formerly known as Kericho/Chemagel/822 now Kericho/Chemagel/2870, 2871 and 2872.
The case of the plaintiff is that she is a beneficiary of the estate of one Kipsang Chirchir (deceased) who died on 13 June 1996. The said Kipsang Chirchir owned the land parcel Kericho/Chemagel/822 measuring 15 acres. His estate was subjected to succession vide Kericho High Court Succession Cause No. 137 of 2007. The grant was confirmed on 30th July, 2014 with 3. 75 acres being granted to the plaintiff. Of the balance, 7. 5 acres was granted to Kipyegon Sang, 1st respondent, and 3. 75 acres to Maria Tapsagaa Chirchir, 2nd respondent. However, the plaintiff has discovered that on 9 March 2001, the four respondents sub-divided the land parcel Kericho/Chemagel/822 into the parcels Kericho/Chemagel/2870, 2871 and 2872. It is further her case, that after the confirmation of the grant of letters of administration, she approached the 1st and 2nd respondents to effect transfer of her 3. 75 acres but her pleas were ignored. In the suit, the plaintiff wants the titles to these three sub-divisions cancelled as they were obtained fraudulently.
Despite being served with the subject application, the defendants have not filed any response to it.
I have seen for myself that the land parcel Kericho/Chemagel/822 was transmitted on 30 July 2014 when the grant of letters of administration was confirmed. 3. 75 acres thereof were transmitted to the plaintiff. Prima facie, the sub-division of the said land before the filing of succession proceedings is illegal. The plaintiff to me has established a prima facie case with a probability of success. I see no reason why I should not allow this application.
I therefore make the following orders :-
(1) That pending the hearing and determination of this suit, there is hereby issued an order of inhibition, barring the registration of any disposition in the register of the land parcels Kericho/Chemagel/2870, 2871 and 2872.
(2) That pending the hearing and determination of this suit, there be no interference whatsoever on the plaintiff's assigned 3. 75 acres in the original land parcel Kericho/Chemagel/822, in accordance with the confirmed grant issued in Kericho High Court Succession Cause No. 137 of 2007.
(3) That the plaintiff shall have the costs of this application.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 27TH DAY OF MARCH, 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
In the presence of
Mr. Charles Koech for Applicant
N/A for M/s Kipkoech for Respondents
Court assistant-Ruth