[2018] KEELC 3024 (KLR)
The court found that the Plaintiff, as attorney for the registered owner, produced certificates of title for the suit properties, which were not challenged by the Defendants. The Defendants expressly denied any claim to the suit parcels and did not contest the Plaintiff's registration. Under Section 26(1) of the...
Source-derived case information.
- Citation
- [2018] KEELC 3024 (KLR)
- Parties
- Applicant: Phoebe Muga Asiyo (Holder of power of Attorney donated by Juni Awiti Asiyo); Respondent: Jacob Nyakwa Ojwang Alias Joseph Nyakwa Ojwang; Respondent: Gordon Nyakwa; Respondent: Damaris Ogare Alias Roselyne Kwamboka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 87 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for temporary injunction granted.
- Judges
- TM Olando
- Legal Topics
- Temporary Injunction, Land Ownership, Title Registration, Trespass, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phoebe Muga Asiyo (Holder of power of Attorney donated by Juni Awiti Asiyo)
Applicant
Jacob Nyakwa Ojwang Alias Joseph Nyakwa Ojwang
Respondent
Gordon Nyakwa
Respondent
Damaris Ogare Alias Roselyne Kwamboka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case with a probability of success for the grant of a temporary injunction.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the Plaintiff, as attorney for the registered owner, produced certificates of title for the suit properties, which were not challenged by the Defendants. The Defendants expressly denied any claim to the suit parcels and did not contest the Plaintiff's registration. Under Section 26(1) of the Land Registration Act, the Plaintiff's title is absolute and indefeasible in the absence of a challenge. The court held that the Plaintiff had established a prima facie case with a probability of success and that the Defendants would not be prejudiced by the grant of a temporary injunction, as they did not claim any interest in the suit properties. Accordingly, the court granted...
Court Disposition
Plaintiff's application for temporary injunction granted.
Orders
- Temporary injunction granted restraining the Defendants, their agents, representatives, servants and/or employees from trespassing on, wasting, constructing on, alienating or otherwise interfering and/or dealing in any way with the Plaintiff’s parcels of land known as Kisumu/Municipality L.R. 15037/10, 15037/14,...
- O.C.S Maseno Police Station to effect and ensure compliance with the court order.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC. CASE NO. 87 OF 2017
PHOEBE MUGA ASIYO
{Holder of power of Attorney donated
by JUNI AWITI ASIYO}.............................PLAINTIFF/APPLICANT
VERSUS
JACOB NYAKWA OJWANG Alias
JOSEPH NYAKWA OJWANG....1ST DEFENDANT/RESPONDENT
GORDON NYAKWA....................2ND DEFENDANT/RESPONDENT
DAMARIS OGARE Alias
ROSELYNE KWAMBOKA.........3RD DEFENDANT/RESPONDENT
RULING
1. The Plaintiff seeks vide notice of motion dated 3rd March 2017 for temporary injunction restraining the “Defendant whether by herself, the Defendant’s agent, representative, servant and/or employee from trespassing on, wasting, constructing on, alienating or otherwise interfering and/or dealing in any way with the Plaintiff’s parcel of land known as Kisumu/Municipality L. R. 15037/10, L.R. 15037/14, 15037/13, 15037/12, 15037/11 and 15037/8”, pending the hearing and determination of this suit. There is also the prayer for O.C.S Maseno Police Station to effect and ensure compliance of any order issued by the Court and costs. The application is based on the five (5) grounds on its face and is supported by the affidavit sworn by Phoebe Asiyo, the Plaintiff, on the 3rd March 2017.
2. The application is opposed by Jacob Nyakwa Ojwang and Gordon Nyakwa, the 1st and 2nd Defendants respectively through their replying affidavits both sworn on the 21st April 2017.
3. The application came up for hearing on the 4th April 2017 when interim injunction order in terms of prayer 2 was granted and other directions given. That the hearing was rescheduled to the 2nd October 2017 when directions on filing and exchanging written submissions on the application were given. The Learned Counsel for the Plaintiff, 1st and 2nd Defendants then filed their written submissions dated 11th October 2017 and 27th February 2018 respectively.
4. The issues for determination are first, whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction to issue at this stage. Secondly, who pays the costs of the application.
5. The Court has carefully considered the grounds on the notice of motion, affidavit evidence by the Plaintiff, 1st and 2nd Defendants, written submissions by Counsel for the Plaintiff, 1st and 2nd Defendants and come to the following conclusions;
a) That the copies of the certificates of title in respect of Kisumu Municipality land reference number 15037/8, 9, 10, 11, 12, 13 and 14 annexed to the supporting affidavit are registered in the name of Juni Awiti Asiyo, represented in this suit by Phoebe Muga Asiyo the Plaintiff, under a power of attorney. That the 1st and 2nd Defendants have in their replying affidavits stated that they do not know the Plaintiff or the said parcels of land and in accordance with Section 26 (1) of the Land Registration Act No. 3 of 2012, the Court takes the said Plaintiff as the absolute and indefeasible owner of the said parcels, as the said registration has not been challenged in this proceedings.
b) That the plaintiff alleges in the application that the Defendants have trespassed onto the suit lands on or about 25th February 2017 and embarked on excavating, fencing and storing building materials thereon among others. The 1st and 2nd Defendants have in their responses denied the Plaintiff’s claim. They depone that “if there is any land that I am constructing on, it is rightfully mine and not among the alleged parcels….”
c) That the foregoing shows that the 1st and 2nd Defendants are not laying any claim of ownership or entitlement to the parcels of lands registered in the Plaintiff’s name. The Court therefore finds that they would not be adversely affected or prejudiced if the injunction prayes sought by the Plaintiff is granted.
6. That in view of the findings above, the Court finds merit in the Plaintiff’s notice of motion dated 3rd March 2017 and the same is granted in terms of prayer 3 with costs in the cause.
Orders accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 30TH DAY OF MAY 2018
In the presence of:
Plaintiff Absent
Defendants Absent
Counsel Mr. Oviero for Plaintiff
M/s Omieri for Kimanga for 1st and 2nd Defendants
S.M. KIBUNJA
ENVIRONMENT & LAND
JUDGE