[2007] KEHC 1755 (KLR)
The court found that there are substantive legal and factual issues to be determined at the full hearing, including allegations of fraud and the lawfulness of the defendants' actions in subdividing and transferring the suit land. The court noted that the applicant and his family reside on the disputed land and that...
Source-derived case information.
- Citation
- [2007] KEHC 1755 (KLR)
- Parties
- Applicant: Peter Ngari Nyaga; Respondent: Nyaga Njagi; Respondent: Samuel Nyaga Ngari; Respondent: Patrick Gachoki Kiuga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 108 of 2006
- Procedural Posture
- Civil Case / Interlocutory Application for Restraining Orders
- Outcome
- Application allowed; interlocutory restraining orders and inhibition granted with costs to the applicant.
- Legal Topics
- Interlocutory Injunctions, Land Title Disputes, Fraudulent Transfer of Land, Registration of Titles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ngari Nyaga
Applicant
Nyaga Njagi
Respondent
Samuel Nyaga Ngari
Respondent
Patrick Gachoki Kiuga
Respondent
Procedural Posture
Civil Case / Interlocutory Application for Restraining Orders
Legal Issues
- 1 Whether interlocutory restraining orders should be granted to preserve the suit property pending determination of the main suit.
- 2 Whether the defendants' actions in subdividing and transferring the suit land were lawful or constituted fraud.
- 3 Whether the balance of convenience favors granting the orders sought by the plaintiff.
Ratio Decidendi
The court found that there are substantive legal and factual issues to be determined at the full hearing, including allegations of fraud and the lawfulness of the defendants' actions in subdividing and transferring the suit land. The court noted that the applicant and his family reside on the disputed land and that the balance of convenience favors preserving the status quo. The prior judgment referenced by the defendants did not authorize the impugned transactions as claimed. Therefore, to prevent further dealings that could prejudice the applicant's interests, the court granted interlocutory restraining orders and an inhibition against the suit properties until the case is heard and...
Court Disposition
Application allowed; interlocutory restraining orders and inhibition granted with costs to the applicant.
Orders
- An interlocutory restraining order is issued against the respondents regarding plot No. Baragwe/Thumaita/930 until further orders of the court.
- The respondents are restrained from selling or transferring parcels of land numbered Baragwe/Thumaita/2737 and 2738 until the suit is heard and determined.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 108 of 2006
PETER NGARI NYAGA……………………..……………..………………APPLICANT
VERSUS
NYAGA NJAGI……………………………….…………….………1ST RESPONDENT
SAMUEL NYAGA NGARI…………………………....……..……..2ND RESPONDENT
PATRICK GACHOKI KIUGA…………………….....………..……3RD RESPONDENT
RULING
Application dated 14/2/2007 by the plaintiff seeks interlocutory restraining orders against the Respondents regarding the plot No. Baragwe/ Thumaita/930 until further orders of this court. Also a restraining order is sought to restrain the defendants from selling or transferring parcels of land numbered Baragwe/Thumuita/2737 and 2738 until this suit is heard and determined. Plaintiff also seeks an order for an inhibition to be registered against the said titles. The application is based on grounds written on the application. The supporting affidavit sworn by plaintiff shows that on 6/1/1999 the first & 2nd defendant had caused the parcel No. Baragwe/Thumaita to be registered in their names and land sub-divided into two portions No.2737 and 2738. Thereafter the 2nd defendant transferred parcel No. 2738 to the third Defendant. The first Defendant states that the transactions complained of were in accordance with Judgment in Case No. SRM. CC 113 of 1990 at Kerugoya. I have perused a copy of Judgment annexed and it appears to me that suit was in respect of plot No. 929 and 930. The court stated “It is only fair that the plaintiff (Nyaga Njagi) can get title to land parcel No. 929 which he intended to be his. The defendant Peter Ngari should then move to parcel No. 930”.
Upon consideration of the arguments on both sides and the affidavit sworn by all the parties it is my finding that there is legal issues to be decided in this matter. There is also matters of facts which need to be canvassed at a full hearing of this suit. The Plaintiff and his family reside on the suit land. The plaintiff pleads fraud. It is in the interest of justice that at this stage pending hearing of this application the subject matter of suit be preserved. At the moment the subject matter of the suit is the plots Nos. 2737 and 2738 Baragwe/Thumaita.
I am satisfied that the balance of convenience tilts in favour of the plaintiff. The Judgment in the earlier lower court gave the plaintiff right to more and get title for plot No.930. This is contrary to what the Defendants say. The transactions therefore carried out by the Defendants are unlawful interfering with the plot No. 930.
I therefore find for the plaintiff’s application is allowed and orders granted as prayed in prayer No 2 and 4 with costs to the Applicant/Plaintiff.
Dated this 27th September, 2007.
J. N. KHAMINWA
JUDGE
27/9/2007
Khaminwa – Judge
Njue – Clerk
Mr. Kathungu present
N/A
Read in open court
J. N. KHAMINWA
JUDGE