[2010] KEHC 2396 (KLR)
The court found that the applicant demonstrated actual possession and occupation of the disputed land and raised credible allegations of fraudulent registration by the respondents. The subject matter in the lower court suits was identical to the present suit, involving the same parties and land parcel. The court...
Source-derived case information.
- Citation
- [2010] KEHC 2396 (KLR)
- Parties
- Applicant: Samuel Wanyonyi Kusimba; Respondent: Caleb Terah Omuranda; Respondent: Ezekiel Wafula Kusimba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 72 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- Application allowed; orders granted as sought in prayers 3, 5, 6, 7, and 8.
- Judges
- FN Muchemi
- Legal Topics
- Injunctive Relief, Land Title Disputes, Fraudulent Registration, Jurisdiction of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Wanyonyi Kusimba
Applicant
Caleb Terah Omuranda
Respondent
Ezekiel Wafula Kusimba
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from dealing with land parcel NDIVISI/NDIVISI/638.
- 2 Whether an order of prohibition should issue to preserve the suit property.
- 3 Whether the Chief Magistrate Court has jurisdiction over the subject matter.
Ratio Decidendi
The court found that the applicant demonstrated actual possession and occupation of the disputed land and raised credible allegations of fraudulent registration by the respondents. The subject matter in the lower court suits was identical to the present suit, involving the same parties and land parcel. The court determined that the applicant had established a prima facie case warranting preservation of the property through injunctive relief. Furthermore, the court accepted the applicant's contention that the Chief Magistrate Court lacked jurisdiction over the dispute, justifying the transfer and consolidation of the lower court cases with the present suit. The absence of opposition from...
Court Disposition
Application allowed; orders granted as sought in prayers 3, 5, 6, 7, and 8.
Orders
- A temporary injunction is issued restraining the respondents and their agents from selling, disposing, wasting, cultivating, or interfering with the quiet possession and use of land parcel NDIVISI/NDIVISI/638 pending hearing and determination of this suit.
- Status quo to be maintained regarding land parcel NDIVISI/NDIVISI/638.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Civil Suit 72 of 2009
IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF LAND PARCEL NO.NDIVISI/NDIVISI/638
BETWEEN
SAMUEL WANYONYI KUSIMBA .…..............… APPLICANT/PLAINTIFF
~VRS~
1. CALEB TERAH OMURANDA …….. RESPONDENTS/DEFENDANTS
2. EZEKIEL WAFULA KUSIMBA
RULING
The Applicant Samuel Wanyonyi Kusimba in his application dated 23/9/2009 seeks for several orders:
1. That an order of prohibition do issue and be registered on parcel no.NDIVISI/NDIVISI638 for purposes of preserving and stopping further dealings in respect of the said title.
2. That there be stay of proceedings in Bungoma CM CC Nos.166 of 2005 and 658 of 2009.
3. That a temporary injunction do issue restraining the Defendants/Respondents and particularly the first Respondent, their agents, servants and workers from selling, disposing, wasting, cultivating or interfering with the quiet possession and use of land parcel No. NDIVISI/NDIVISI/638 pending hearing and determination of this suit, and that status quo be maintained.
4. That Bungoma CM CC Nos. 166 of 2005 and 658 of 2009 be transferred from the Chief Magistrate Court to this court and consolidate with this suit.
The application was unopposed by the Respondents. The same was served on C. K. Areba & Co. and Lucy Nanzushi & Co. in their capacity as the advocates for the Respondents in the lower court suits.
The Applicant depones in the supporting affidavit sworn on 23/9/2009 that he is in actual possession, occupation and use of the land in question which facts are in the knowledge of the Respondents. The registration of the land in the names of the Respondents was fraudulent. It is important to restrain the Respondents from selling, cultivating and wasting the land in order to protect the Applicant’s rights in this suit. The subject matter in the two suits before the Chief Magistrate is the same in this case thus the prayer for transfer and consolidation of the three suits. According to the Applicants, the Chief Magistrate Court lacks jurisdiction to determine the issues in the said suits.
I have perused the annexed pleadings in CM CC No.166 of 2005 and 658 of 2009. It is evident that the subject matter is Land Parcel Nos.NDIVISI/NDIVISI/638 and that the parties are the same as in this suit. The issues raised herein and in the two suits in the magistrate’s court are fundamental to the ownership of the subject matter.
I am convinced that the application before me is merited and I hereby grant the orders sought in terms of prayers 3, 5, 6, 7 and 8.
F. N. MUCHEMI
JUDGE
Ruling dated and delivered this 9th day of June 2010
In the presence of MR Situma for Athunga for plaintiffs.
F. N. MUCHEMI
JUDGE