[2014] KEHC 7441 (KLR)
The court found that despite the defendant's counter-claim and allegations of fraud in the registration process, the plaintiffs remain the registered proprietors of the suit land. The law protects registered owners from interference, and the defendant's actions of entering and constructing on the land without...
Source-derived case information.
- Citation
- [2014] KEHC 7441 (KLR)
- Parties
- Plaintiff: Plista Anyango Orera; Plaintiff: Benson Ochieng Orera; Defendant: Peter Ojigo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 109 of 2012
- Procedural Posture
- Land Application / Ruling on Interlocutory Injunction Application
- Outcome
- Plaintiffs' application for a restraining order granted; costs awarded to plaintiffs.
- Legal Topics
- Interlocutory Injunctions, Registered Land Rights, Succession Disputes, Land Ownership, Trespass, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Plista Anyango Orera
Plaintiff
Benson Ochieng Orera
Plaintiff
Peter Ojigo
Defendant
Procedural Posture
Land Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant a restraining order against the defendant.
- 2 Whether the defendant's activities on the suit land constitute unlawful interference with registered ownership.
- 3 Whether the ongoing succession dispute affects the plaintiffs' right to injunctive relief.
Ratio Decidendi
The court found that despite the defendant's counter-claim and allegations of fraud in the registration process, the plaintiffs remain the registered proprietors of the suit land. The law protects registered owners from interference, and the defendant's actions of entering and constructing on the land without adjudication of his claim constitute a violation of the plaintiffs' rights. The court held that the plaintiffs had established a prima facie case for the grant of a restraining order. The ongoing succession dispute and the defendant's claims do not entitle him to take the law into his own hands or interfere with the plaintiffs' registered rights pending determination of the suit....
Court Disposition
Plaintiffs' application for a restraining order granted; costs awarded to plaintiffs.
Orders
- A restraining order is issued against the defendant, his workers, agents or whomsoever else from fencing, trespassing, encroaching, forcefully entering, constructing, disposing or interfering with land parcel No. EAST GEM/ANYIKO/1386 pending hearing and determination of the suit.
- Costs of the application awarded to the plaintiffs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
LAND AND ENVIRONMENT 109 OF 2012
PLISTA A. ORERA & ANOTHER.....................................PLAINTIFF
VERSUS
PETER OJIGO...............................................................DEFENDANT
RULING
This is a ruling on an application – a Notice of Motion – filed here on 26/11/2012 – by the plaintiffs – PLISTA ANYANGO ORERA and BENSON OCHIENG ORERA – against the defendant – PETER OJIGO.
The plaintiffs seek a restraining order against the defendant, by himself, workers, agents or whomsoever else restraining them from fencing, trespassing, encroaching, forcefully entering, constructing, disposing or interfering with plaintiff's land parcel No. EAST GEM/ANYIKO/1386 pending hearing and determination of the suit. The O.C.S, Yala, is required to help in effecting the orders and the plaintiffs ask that costs of the application be in the cause.
The grounds advanced in support stipulate, inter alia, that the defendant is already constructing on EAST GEM/ANYIKO/1386 (hereafter the suit land) although he knows the suit land belongs to the plaintiff. The plaintiff said he is the registered owner, having inherited the suit land from ORERA ODHUHU. I t is alleged that the plaintiffs have a primafacie case and will also suffer irreparable loss if the defendant is not stopped.
The 1st plaintiff swore a supporting affidavit saying, interalia, that she inherited the suit land from her husband – ORERA ODHUHU. She had had a dispute with the defendant before Siaya Land Disputes tribunal. It would appear that she won. The defendant appealed but the appeal was dismissed.
The defendant filed a replying affidavit and stated that the matter arises from a protracted Succession dispute and asked the court to consider that before issuing any orders. He said further that he and his two brothers are the right beneficiaries of the suit land by virtue of being the living grandsons of the late MIRIAM DEMBA OKANG'A.
Some history was given. The plaintiff's grandfather had MIRIAM DEMBA OKANG'A as his wife. The grandfather died and MIRIAM was levitated by Odhuhu Suji who is now deceased. Suji was 1st plaintiff's father in law and grandfather to 2nd plaintiff. MIRIAM then got sick. Suji took control of the family land and during registration, Suji fraudulently registered the family land in his name. The family land was registered as EAST GEM/ANYIKO/1040 but was later sub divided into EAST GEM/ANYIKO/1385andEAST GEM/ANYIKO/1386.
The defendant deponed further that at the time of demarcation parcel No.1040 was in exclusive control of his parents and that there is no relation between his family side and the plaintiff's side. It would appear that the defendant is contesting the alleged fraud committed by Suji.
The Court heard the application interpartes on 25/6/2013. During hearing the plaintiffs' counsel generally re-stated what the grounds advanced in support and the supporting affidavit contain. It was not much different also with the defendant's counsel.
The Court has looked at the suit as filed and also at the defendant's defence and counter-claim. This is done with a view to deciding whether a prima facie case is made out by the plaintiffs. It seems to the Court that the defendant's defence and counter-claim present a formidable challenge to the plaintiff's case but there is no running away from the fact that the plaintiff is still the registered owner of the land.
When the fact of registration is considered, it becomes difficult to countenance the fact that one can enter another's registered land and start construction. This would constitute both violation and disregard of the law. However meritorious the defendant may feel his claim to be, nothing warrants him to start any activities on the suit land before adjudication of his claim. It is precisely because of all this that the court holds that the plaintiff has established a prima facie case.
The court therefore grants the prayer of restraining order as prayed for in prayer 3 in the application. Prayer 4 is not granted for now. Violation of prayer 3 would constitute contempt and the plaintiff should institute the necessary proceedings should there be breach of that order. The plaintiff is also awarded costs of the application.
A.K. KANIARU – JUDGE
10/1/2014
10/1/2014
A.K. Kaniaru – Judge
Diang'a George – C/C
No party – Present
Omondi M. for Nyatundo for Plaintiff/Applicant
P. Otieno (absent) for defendant
COURT:Ruling on application filed on 26/11/2012 read and delivered in open COURT.
Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
10/1/2014