[2011] KEHC 2233 (KLR)
The court found that while the plaintiff claims a beneficial interest in the property, she cannot be permitted to exclusively occupy and benefit from the house to the exclusion of the registered owner during the pendency of the dispute. To balance the parties' interests and preserve the property, the court ordered...
Source-derived case information.
- Citation
- [2011] KEHC 2233 (KLR)
- Parties
- Plaintiff: Rose Karuthu Ikunyua; Defendant: Charles Kibiti Ikunyua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 96 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Defendant's application allowed; interim orders granted.
- Legal Topics
- Co Ownership Disputes, Trusts in Land, Rectification of Register, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Karuthu Ikunyua
Plaintiff
Charles Kibiti Ikunyua
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the defendant holds the property in trust for the plaintiff.
- 2 Whether the plaintiff is entitled to exclusive occupation of the property pending determination of the suit.
- 3 What interim measures are appropriate to preserve the property and the parties' interests.
Ratio Decidendi
The court found that while the plaintiff claims a beneficial interest in the property, she cannot be permitted to exclusively occupy and benefit from the house to the exclusion of the registered owner during the pendency of the dispute. To balance the parties' interests and preserve the property, the court ordered that the plaintiff vacate the premises within 30 days, after which the property should be rented out and the rental income deposited into a joint interest-earning account operated by the parties' counsel. This arrangement ensures neither party enjoys exclusive benefit and maintains the status quo until the substantive issues of ownership and trust are determined at trial.
Court Disposition
Defendant's application allowed; interim orders granted.
Orders
- Plaintiff to vacate the house within 30 days.
- The property to be rented out after vacation by the plaintiff.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 96 OF 2010
ROSE KARUTHU IKUNYUA ……………….PLAINTIFF/RESPONDENT
V E R S U S
CHARLES KIBITI IKUNYUA ……………….DEFENDANT/APPLICANT
R U L I N G
The parties are disputing over the 4 bed roomed house on title No. Nairobi Block 72/1929 in Langata Estate which is registered in the name of the Defendant but in which the Plaintiff resides claiming to be a co-owner having participated in its purchase. She sued for a declaration that the Defendant holds the title in trust for her and asked that the register be rectified to reflect her as a joint owner. The problem is that she exclusively lives on the property and does not want the registered owner any benefit or access to the same. That cannot be allowed to happen. What is reasonable is that, as the parties wait for the resolution of the dispute, the Plaintiff shall in 30 days vacate the house and the parties shall get a tenant who shall henceforth pay rent which shall be deposited into a joint interest earning account to be operated by their counsel. In those terms, the Defendant’s application dated 15th December 2010 succeeds and he will have costs of the same.
DATED AND DELIVERED AT NAIROBI
THIS 4TH DAY OF MAY 2011
A.O. MUCHELULE
J U D G E