[2013] KEHC 3620 (KLR)
The court found that the applicant had established a prima facie case with a probability of success, as he is the registered owner of the land and is still servicing a loan for it. The agreement to subdivide the land was made under circumstances that were not practicable, given the size of the land and the number of...
Source-derived case information.
- Citation
- [2013] KEHC 3620 (KLR)
- Parties
- Plaintiff: Peter Mutacho Misiko; Defendant: Bonface Misiko Mutacho; Defendant: Nathaniel Masibo; Defendant: Isaac Khisa; Defendant: Dismas Mwisamba; Defendant: George Kirui; Defendant: Patrick Wanjala Misiko
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 30 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Application for Temporary Injunction
- Outcome
- Temporary injunction confirmed; costs in the cause.
- Judges
- EO Obaga
- Legal Topics
- Temporary Injunctions, Land Ownership Disputes, Family Land Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutacho Misiko
Plaintiff
Bonface Misiko Mutacho
Defendant
Nathaniel Masibo
Defendant
Isaac Khisa
Defendant
Dismas Mwisamba
Defendant
George Kirui
Defendant
Patrick Wanjala Misiko
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from interfering with Plot No. 435 at Maridadi Settlement Scheme.
- 2 Whether the respondents can compel the applicant to subdivide and allocate portions of the land during his lifetime.
Ratio Decidendi
The court found that the applicant had established a prima facie case with a probability of success, as he is the registered owner of the land and is still servicing a loan for it. The agreement to subdivide the land was made under circumstances that were not practicable, given the size of the land and the number of potential beneficiaries. The respondents, being sons and grandsons of the applicant, cannot compel him to subdivide and allocate the land during his lifetime, especially where such subdivision would not be feasible and could lead to family discord. The court confirmed the temporary injunction restraining the respondents from interfering with the applicant's land until the...
Court Disposition
Temporary injunction confirmed; costs in the cause.
Orders
- The temporary injunction granted against the respondents on 15/03/2013 is confirmed and shall last until the hearing and determination of the case.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Kitale
Environmental & Land Case 30 of 2013 [if gte mso 9]><xml>
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PETER MUTACHO MISIKO........….........................… PLAINTIFF
VERSUS
BONFACE MISIKO MUTACHO…...............................................}
NATHANIEL MASIBO …..............................................................}
ISAAC KHISA …............................................................................}
DISMAS MWISAMBA ….............................................................}
GEORGE KIRUI .…........................................................................}
PATRICK WANJALA MISIKO....................................................}
PATRICK WANJALA MISIKO …......................} DEFENDANTS
R U L I N G
The Applicant herein Peter Mutacho Misiko brought an application seeking a temporary injunction seeking to restrain the Respondents, their agents, servants and all those claiming under them from entering, sub dividing, selling, leasing, alienating or in any other way interfering with his Plot No. 435 at Maridadi Settlement Scheme. The Applicant was granted a temporary injunction pending hearing inter-partes. All the Respondents were duly served for inter-partes hearing but none filed either Replying Affidavit or Grounds of Opposition or both.
The 1st to 4th Respondents are sons of the Applicant. The 5th and 6th Respondents are grandsons of the Applicant. The Applicant is owner of Plot No. 435 at Maridadi Settlement Scheme the same having been allocated to him by the Land Adjudication and Settlement Department Trans-Nzoia. The land is 5 acres and he is still paying a loan for it to the Settlement Fund Trustee. Sometime in early 2013, the Respondents reported the Applicant to the District Officer Kwanza Division over a dispute over the land. By a letter dated 01/02/2013, the District Officer Kwanza Division summoned the Applicant to his office whereby the Applicant was forced to enter into an agreement that he was to subdivide his land and give each concerned party one acre each. The Respondents have since that agreement pushed the Applicant into subdividing his land to which he does not want. The Applicant contends that if he were to give one acre each as per the agreement, it will not be enough for himself and his sons and those who will miss out will cause chaos in the family.
From the agreement which was signed before the District Officer Kwanza Division, it shows that the Applicant has four living sons and two who have died. This therefore means that the Applicant has six sons and it will therefore not be practicable for each to get an acre from the 5 acres. Whoever drafted the agreement seems to suggest that the ones who participate in paying off the outstanding loan to the Settlement Fund Trustee should benefit and the one who do not should miss out on the one acre. This is an arrangement which will cause chaos than settle the matter. Besides this, the Respondents cannot force their father and grandfather to subdivide his land during his lifetime. If the Applicant has accommodated them on the land as his sons and grandsons, they cannot force him to subdivide the land in a manner which is not practicable. I find that the Applicant has demonstrated that he has a prima facie case with a probability of success. The temporary injunction granted against the Respondents on 15/03/2013 is hereby confirmed. It shall last until the hearing and determination of this case. Costs of this application shall be in the cause.
It is so ordered.
Dated, signed and delivered in Open Court on this 7th day of May, 2013.
E. OBAGA
JUDGE
In the presence of Mrs. Munialo for Plaintiff/Applicant
Court Clerk: Joan
E. OBAGA
JUDGE
07/05/2013
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