[2017] KEELC 2335 (KLR)
The Plaintiffs, having been registered as proprietors of the suit properties pursuant to a certificate of confirmation of grant, are entitled to possession and protection of their proprietary rights. The Defendants' continued occupation is not justified, as the succession process was completed with the issuance of...
Source-derived case information.
- Citation
- [2017] KEELC 2335 (KLR)
- Parties
- Plaintiff: Rachael Mweikali Kanyolo; Plaintiff: Tony Kioko Kanyolo; Plaintiff: Fransica Kasyoka Kimanzi; Defendant: Alexander Musyoki Kanyolo; Defendant: Grace Katumbi Musyoki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 231 of 2014
- Procedural Posture
- Environment and Land Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Temporary Injunctions, Succession and Administration, Proprietary Rights, Trespass, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rachael Mweikali Kanyolo
Plaintiff
Tony Kioko Kanyolo
Plaintiff
Fransica Kasyoka Kimanzi
Plaintiff
Alexander Musyoki Kanyolo
Defendant
Grace Katumbi Musyoki
Defendant
Procedural Posture
Environment and Land Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiffs have established a prima facie case for grant of a temporary injunction restraining the Defendants from interfering with the suit properties.
- 2 Whether the Plaintiffs are the lawful proprietors of the suit properties following the succession process.
- 3 Whether the Defendants have any legal right to remain on the suit properties pending challenge to the grant.
Ratio Decidendi
The Plaintiffs, having been registered as proprietors of the suit properties pursuant to a certificate of confirmation of grant, are entitled to possession and protection of their proprietary rights. The Defendants' continued occupation is not justified, as the succession process was completed with the issuance of the grant. Any challenge to the distribution must be made in the appropriate succession cause, not by interfering with the Plaintiffs' possession. The Plaintiffs' cause of action arose upon registration of the titles in their names, and there is no evidence that the suit is time barred. The Plaintiffs have established a prima facie case warranting the grant of a temporary...
Court Disposition
application allowed
Orders
- A temporary injunction is granted restraining the Defendants, their servants, agents, proxies and any other person acting under their authority from cultivating, tilling, taking away building materials, and/or interfering with the suit properties, Title Numbers Migwani/Kyamboo/169 and Migwani/Kyamboo/337 within Mwingi.
- The OCS Migwani Police Station through the OCPD’s Office shall ensure compliance with the above order.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. SUIT NO. 231 OF 2014
RACHAEL MWEIKALI KANYOLO.............................1ST PLAINTIFF
TONY KIOKO KANYOLO...........................................2ND PLAINTIFF
FRANSICA KASYOKA KIMANZI...............................3RD PLAINTIFF
VERSUS
ALEXANDER MUSYOKI KANYOLO......................1ST DEFENDANT
GRACE KATUMBI MUSYOKI..................................2ND DEFENDANT
RULING
1. In the Application dated 19th December, 2014, the Plaintiffs are seeking for the following orders:
a.That a temporary injunction be granted restraining the Defendants/Respondents whether by themselves, their servants, agents, proxies and any other person acting under their authority from cultivating, tilling, taking away building materials, and/or interfering with the suit Property, Title Numbers Migwani/Kyamboo/169 and Migwani/Kyamboo/337 within Mwingi.
b.The OCS Migwani Police Station through the OCPD’S Office to ensure compliance of order 3 above.
c.Such other or furthers orders as this Honourable Court may deem fit to grant.
d.Costs of this Application be provided for.
2. In the Application, the Plaintiffs have averred that they are the registered proprietors of the suit properties; that the Defendants have been committing acts of trespass over the suit land and that as a result, they have suffered financial loss.
3. In response, the 1st Defendant deponed that he is an elder brother to the deceased, Harman Syanda Kanyolo, whose estate constitute the subject suit properties; that prior to his death, the deceased and the 3rd Applicant were judicially separated and that at the time of the separation, the 1st and 2nd Plaintiffs were minors.
4. According to the 1st Defendant, he is the one who took care of the deceased when he was taken ill; that the deceased handed to him the custody of the suit premises and the Title Deeds and that after the death of the deceased, they agreed that the 3rd Plaintiff and himself would be the administrators of the Estate of the deceased.
5. The 1st Defendant deponed that he was surprised when he learnt that the Applicants had transferred the suit properties into their names and that the said transfer was secured by misrepresentation, deceit and material non-disclosure.
6. According to the 1st Defendant, they have never insisted on remaining on the suit promises and that they were on the land as custodians of the land awaiting the succession process to be completed.
7. The Plaintiffs’ and the Defendants’ advocates filed submissions and authorities which I have considered.
8. It is not in dispute that the suit properties were initially registered in the name of the late Hemen Syanda Kanyolo. However, pursuant to the certificate of confirmation of a Grant dated 21st December, 2012, the suit properties were subsequently registered in favour of the Plaintiffs.
9. The Defendants have admitted in their Affidavit that they have not insisted on remaining on the suit premises and that they are only awaiting the completion of the succession process.
10. That succession process was completed the moment the High Court issued to the Plaintiffs with the Certificate of Confirmation of Grant.
11. If the Defendants are not satisfied with the manner in which the suit properties were distributed by the Court, then the proper recourse is for them to move the High Court in Mombasa Succession Cause No. 295 of 2004 and have the said Certificate of Confirmation of Grant revoked. In the meantime, it is the Plaintiffs who are entitled to be in possession of the suit land.
12. Although the Defendants have claimed that the Plaintiffs’ suit is time barred, there is no evidence to show that twelve years have lapsed since the Plaintiffs’ cause of action arose.
13. Indeed, the Plaintiffs’ cause of action could only have arose after the Title Deeds were issued in their names, which was in July, 2014.
14. For those reasons, I find and hold that the Plaintiffs have established a prima facie case with chances of success.
15. In the circumstances, I allow the Application dated 19th December, 2014 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 16TH DAY OF JUNE, 2017.
O.A. ANGOTE
JUDGE