[2012] KEHC 2887 (KLR)
The court found that the defendant, as the registered proprietor of the suit lands, has an absolute legal right to deal with the property, including the proceeds from sugarcane grown on the land. There was no evidence presented that the defendant intended to dispose of or alienate the suit parcels. Therefore, there...
Source-derived case information.
- Citation
- [2012] KEHC 2887 (KLR)
- Parties
- Plaintiff: Salome Makokha Murunga; Plaintiff: Dominic Shikwaru Odongo; Defendant: Constantine Okumu Ndumbi; Respondent: Land Registrar – Busia; Respondent: Mumias Sugar Company Ltd
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 15 of 2012
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- AO Muchelule
- Legal Topics
- Succession Disputes, Fraudulent Transfer, Interlocutory Injunctions, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Makokha Murunga
Plaintiff
Dominic Shikwaru Odongo
Plaintiff
Constantine Okumu Ndumbi
Defendant
Land Registrar – Busia
Respondent
Mumias Sugar Company Ltd
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should order detention of sugarcane proceeds held by the 2nd Interested Party pending determination of the suit.
- 2 Whether the court should issue an inhibition or restriction against dealings in respect of the suit land parcels.
Ratio Decidendi
The court found that the defendant, as the registered proprietor of the suit lands, has an absolute legal right to deal with the property, including the proceeds from sugarcane grown on the land. There was no evidence presented that the defendant intended to dispose of or alienate the suit parcels. Therefore, there was no basis to grant orders detaining the proceeds or restricting dealings with the land. The application was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Case 15 of 2012
IN THE MATTER OF THE SUCCESSION ACT CAP. 160 LAWS OF KENYA
AND
IN THE MATTER OF LAND REGISTRATION ACT NO.3 OF 2012
BETWEEN
SALOME MAKOKHA MURUNGA.............................................................................................................1ST PLAINTIFF
DOMINIC SHIKWARU ODONGO......................................................................................................2ND PLAINTIFF
~VRS~
CONSTANTINE OKUMU NDUMBI......................................................................................DEFENDANT/RESPONDENT
LAND REGISTRAR – BUSIA....................................................................................................1ST INTERESTED PARTY
MUMIAS SUGAR COMPANY LTD.........................................................................................2ND INTERESTED PARTY
RULING
This motion seeks that an order be issued directed at the 2nd Interested Party and all those acting under it to detain the sugarcane proceeds held on Mumias Sugar account no.30330, field no.Elukongo 401/4600, plot no.7 pending the hearing and determination of this suit. The other prayer is than an order be issued directing the 1st Interested Party and all those acting under him to inhibit, prohibit or otherwise restrict any dealings whatsoever in respect of land parcels nos. Bukhayo/Malanga/1312 and Bukhayo/Malanga/1321. The dispute herein is essentially between the Plaintiffs and the Defendant. The Defendant is the registered proprietor of the suit lands since June 1996. It is claimed that she got registered by way of transmission which they contend was done fraudulently as they are the legitimate heirs to the estate of the deceased John Odongo who died intestate on 25/7/1982. She has apparently grown sugarcane on the suit land and has a contract with the 2nd Interested Party.
Prima facie,the Defendant has an absolute legal claim and entitlement to the suit lands which she can deal with as she wishes. If she is growing sugarcane on the land she would be entitled to the proceeds. To detain the proceed would be to interfere with her right to own, utilize and use the lands.
Secondly, there is no claim that the Defendant wishes to dispose or in any other manner alienate the suit parcels. There would, therefore, be no basis to inhibit or restrict the titles.
The application has no merit and is dismissed. The Defendant and Interested Parties did not defend the application and will therefore not be entitled to costs.
Dated, signed and delivered at Bungoma this 26th day of July 2012.
A.O. MUCHELULE
JUDGE