[2015] KEELC 597 (KLR)
The court found that the plaintiffs had established a prima facie case for the grant of an interlocutory injunction, as they demonstrated possession of the suit properties and alleged fraudulent registration of the land in the defendant's name. The defendant failed to oppose the application or refute the plaintiffs'...
Source-derived case information.
- Citation
- [2015] KEELC 597 (KLR)
- Parties
- Plaintiff: Samwel Ojwang Mumbo; Plaintiff: James Kihara; Defendant: James Felix Gitau Githunguri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 267 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for injunction allowed as unopposed.
- Judges
- MA Silau
- Legal Topics
- Injunctive Relief, Fraudulent Transfer of Land, Title Registration Dispute
- 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
Samwel Ojwang Mumbo
Plaintiff
James Kihara
Plaintiff
James Felix Gitau Githunguri
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of an interlocutory injunction pending trial.
- 2 Whether the balance of convenience favours preservation of the suit property pending determination of the suit.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case for the grant of an interlocutory injunction, as they demonstrated possession of the suit properties and alleged fraudulent registration of the land in the defendant's name. The defendant failed to oppose the application or refute the plaintiffs' claims. The court held that, although it could not conclusively determine the issue of fraud at this interlocutory stage, the balance of convenience required preservation of the status quo to prevent possible disposition or interference with the land pending the hearing and determination of the suit. Accordingly, the court granted the orders sought to restrain the defendant...
Court Disposition
Application for injunction allowed as unopposed.
Orders
- The defendant is barred from selling, charging, leasing, or otherwise disposing of land parcels Miti Mingi/Mbaruk/5215 and 5217.
- An order of inhibition is issued, barring registration of any disposition in the register of land parcels Miti Mingi/Mbaruk/5215 and 5217.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIROMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 267 OF 2014
SAMWEL OJWANG MUMBO …………….……1ST PLAINTIFF
JAMES KIHARA ……………………..….………2ND PLAINTIFF
VERSUS
JAMES FELIX GITAU GITHUNGURI……….…DEFENDANT
RULING
(Application for injunction; application not opposed; and application allowed).
1. This suit was commenced by way of plaint filed on 24 September 2014. The case of the plaintiffs is that together with others, they formed Camapepas Self Help Group and bought land for sub-division among the members. The 1st plaintiff has averred that his plot was Miti Mingi/Mbaruk/5217, whereas for the second plaintiff, was Miti Mingi/Mbaruk/5215. The group mandated their Vice Chairman, one Zacharia Jaji (deceased) to process the individual title deeds but the plaintiffs have yet to get theirs. It later emerged to the plaintiffs that the said person had fraudulently sold the two plots to the defendant and colluded to register the title deed in the name of the defendant. The plaintiffs aver that they are in possession of the subject plots but that the defendant is threatening to dispossess them.
2. Together with the plaint, the plaintiffs filed an application for injunction, seeking to restrain the defendant from disposing the suit land or interfering with their possession, pending hearing of this suit. That application is the subject of this ruling. The application is supported by the affidavit of the 1st plaintiff, who has more or less repeated the averments in the plaint. He has inter alia deposed that the said Zacharia Jaji (deceased) fraudulently prepared some sale agreements purporting that the plaintiffs had sold land to the defendant; that the said Jaji was reported to the police; and that he was involved in other similar criminal activities.
3. Despite being served, the defendant has not entered appearance nor has he filed any response to the application. Mr. Gai for the plaintiff urged me to allow the application as it was unopposed.
4. The case of the plaintiffs is that the defendant, by fraud, got himself registered as proprietor of what they consider to be their rightful parcels of land. The defendant has not filed any papers to refute the claims. I cannot at this stage determine for sure whether the defendant's registration was fraudulent, for that can only be determined after trial, but I think the balance of convenience lies in preserving the subject matter of the suit and for status quo to be maintained pending hearing of the suit.
5. I therefore make the following orders pending hearing and determination of this suit:-
1. That the defendant is hereby barred from selling, charging, leasing, or in any other way disposing of the land parcels Miti Mingi/Mbaruk/5215 and 5217.
2. That an order of inhibition is hereby issued, barring the registration of any disposition in the register of the land parcels Miti Mingi/Mbaruk/5215 and 5217.
3. That the defendant is hereby barred from entering, developing, or in any other way interfere with the plaintiffs' possession of the land parcels Miti Mingi/Mbaruk/5215 and 5217.
4. Costs of this application will be costs in the cause.
It is so ordered.
Dated, signed and delivered in open court this 12th day of March 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :-
Mr Magata holding brief for Mr Gai for plaintiff
Defendant: absent
Emmanuel Maelo : Court Assistant
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU