[2008] KEHC 3124 (KLR)
The court found that the Land Disputes Tribunal lacked jurisdiction to issue injunctions, making the High Court the proper forum for such relief, though the suit should have been filed before the Subordinate Court. Since the defendant denied entering the land, no prejudice would be caused by restraining him from the...
Source-derived case information.
- Citation
- [2008] KEHC 3124 (KLR)
- Parties
- Plaintiff: Salim Chindoro Mwero; Defendant: Chidzao Nyiro
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 129 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction and Transfer of Suit
- Outcome
- Application for injunction allowed; suit transferred to Senior Resident Magistrate’s Court at Kwale.
- Legal Topics
- Injunctions, Land Ownership Disputes, Jurisdiction of Tribunals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Chindoro Mwero
Plaintiff
Chidzao Nyiro
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction and Transfer of Suit
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from interfering with the disputed land pending appeal.
- 2 Whether the Land Disputes Tribunal has jurisdiction to issue injunctions.
- 3 Whether the suit was properly filed before the High Court or should have been filed before the Subordinate Court.
Ratio Decidendi
The court found that the Land Disputes Tribunal lacked jurisdiction to issue injunctions, making the High Court the proper forum for such relief, though the suit should have been filed before the Subordinate Court. Since the defendant denied entering the land, no prejudice would be caused by restraining him from the land until the appeal is heard. The court therefore granted the injunction as prayed and ordered the transfer of the suit to the Senior Resident Magistrate’s Court at Kwale for hearing and final disposal.
Court Disposition
Application for injunction allowed; suit transferred to Senior Resident Magistrate’s Court at Kwale.
Orders
- An injunction is granted restraining the defendant from interfering with the disputed land until the appeal is heard and determined.
- The suit is transferred to the Senior Resident Magistrate’s Court at Kwale for hearing and final disposal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Case 129 of 2007
SALIM CHINDORO MWERO ::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
CHIDZAO NYIRO ::::::::::::::::::::::::::::::::::::::::DEFENDANT
**********************
RULING
This case relates to the dispute between the parties on the ownership of the unadjudicated piece of land situate in Kinango District which was the subject matter of claim No. 9 of 2006 in the Kinango District Land Disputes Tribunal. In that case the Tribunal ruled that the land belongs to the defendant. Aggrieved by that ruling the plaintiff filed Appeal No. 39 of 2007 in the Coast Provincial Land Disputes Committee which has not been heard.
In the meantime, the plaintiff claims, the defendant has, without first getting that award adopted by the Kwale.Resident Magistrates Court and a decree drawn, moved into the land and started cutting down the plaintiff’s mango trees and generally clearing the land for cultivation. The plaintiff is fearful that that will change the character of the land and deface the boundary lines. He has therefore along with the filing of this suit applied for an injunction to restrain the defendant from interfering with the land until the said appeal is heard and determined.
Besides counsel for the defendant pointing out that this application should have been made to the Tribunal under Order 41 and not under Order 39 of the Civil Procedure Rules counsel for the parties chose to rely on the pleadings and never made any submissions.
Like the Business Premises Rent Tribunal I do not think that the Land Disputes Tribunal has jurisdiction to issue injunctions. This suit is therefore properly before this court although it should have been filed before the Subordinate Court.
In his defence the defendant denies having entered the disputed piece of land. That being the case no prejudice will be cuased to him if he stays out of he land until the appeal is heard and determined.
I therefore allow the application as prayed. As I have said this suit, should have been filed before the Subordinate Court. The same is hereby transferred to the Senior Resident Magistrate’s court at Kwale for hearing and final disposal.
DATED and delivered this 16th day of January 2008.
D.K. MARAGA
JUDGE