[2017] KEELC 2676 (KLR)
The court found that both the Plaintiff and the 4th Defendant hold separate grant certificates over the same parcel of land, as confirmed by the surveyor's report. The Plaintiff, as an administrator of the estate of the original registered proprietor, has demonstrated a prima facie case with a probability of...
Source-derived case information.
- Citation
- [2017] KEELC 2676 (KLR)
- Parties
- Plaintiff: Selyna Z. Musandu; Defendant: The Commissioner of Land; Defendant: Registrar of Titles; Defendant: The National Land Commission; Defendant: George Adada Nyagowa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 50 of 2016
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Application for Temporary Injunction
- Outcome
- application allowed
- Legal Topics
- Temporary Injunctions, Double Allocation of Land, Title Registration Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selyna Z. Musandu
Plaintiff
The Commissioner of Land
Defendant
Registrar of Titles
Defendant
The National Land Commission
Defendant
George Adada Nyagowa
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case with a probability of success for a temporary injunction to issue at this interlocutory stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that both the Plaintiff and the 4th Defendant hold separate grant certificates over the same parcel of land, as confirmed by the surveyor's report. The Plaintiff, as an administrator of the estate of the original registered proprietor, has demonstrated a prima facie case with a probability of success. Given the existence of competing titles and the risk of further alienation or interference with the property, the court held that it is necessary to preserve the status quo by granting a temporary injunction restraining the 4th Defendant from trespassing, alienating, or interfering with the suit property pending the hearing and determination of the main suit. The court also...
Court Disposition
application allowed
Orders
- Temporary injunction granted restraining the 4th Defendant, by himself or agent, from trespassing onto, alienating, or in any way interfering with the suit property pending hearing and determination of the suit.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.50 OF 2016
SELYNA Z. MUSANDU..........................................................................PLAINTIFF
VERSUS
THE COMMISSIONER OF LAND ...............................................1ST DEFENDANT
REGISTRAR OF TITLES………………………..……………………2ND DEFENDANT
THE NATIONAL LAND COMMISSION…………...……..………….3RD DEFENDANT
GEORGE ADADA NYAGOWA……………….….....….………...…..4TH DEFENDANT
RULING
1. Selyna Z. Musandu, the Plaintiff, vide notice of motion under Section 1A, 1B of the Civil Procedure Act and Order 40 of Civil Procedure Rules dated 4th March 2016, seeks for temporary injunction restraining George Adada Nyangowa, the 4th Defendant, by himself or agent from trespassing onto, alienating the land or in any way interfering with the suit property pending hearing and determination of the suit. The application is based on the four grounds on the notice of motion and is supported by the Plaintiff’s affidavit sworn on the 24th February 2016.
2. The application is opposed by the 4th Defendant through his replying affidavit sworn on the 9th November 2016.
3. The notice of motion came up for hearing on the 13th March 2017 when Mr. Wasuna and Mr. Abande, learned counsel for the Plaintiff and 4th Defendant respectively, made their oral submissions.
4. The issues for the court’s determination are as follows:
a) Whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction to issue at this interlocutory stage.
b) Who pays the costs.,
5. The court has after considering the grounds on the notice of motion, affidavit evidence and submissions by both counsel come to the following findings;
a) That the Plaintiff is one of the four administrators of the estate of the Late Shadrack Jorim Wamari Musandu, having been so appointed on 14th October 2011 in Nairobi H.C. Succession Cause No.1093 of 2011.
b) That the late Shadrack Jorim Wamari Musandu became the registered leasehold proprietor of L.R. 18998 measuring 1. 2 hectares under Grant No.1. R.64336 of 30th December 1994.
c) That the 4th defendant is the registered leasehold proprietor of L.R.29996, measuring 1. 2 hectares under Grant No.153894 of 17th January 2014.
d) That from the surveyor’s report annexed to the Plaintiff’s supporting affidavit, the Grant certificates (titles) in (b) and (c) above are over the same parcel of land on the ground.
e) That as the same parcel of land is claimed by both the Plaintiff and the 4th Defendant under two separate documents of ownership, it is necessary that the obtaining status quo in respect of the said land be maintained pending the hearing and determination of this suit.
6. That in view of the findings above, the notice of motion dated 4th March 2016 has merit and is allowed as prayed with costs in the cause.
Orders accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 21ST DAY OF JUNE 2017
In presence of;
Plaintiff Absent
Defendants Absent
Counsel Mr. Achura for Wasuna for Plaintiff.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
21/6/2017
21/6/2017
S.M. Kibunja Judge
Court assistant Oyugi
Parties absent
Mr. Achura for Wasuna for Plaintiff/Applicant
Order: Ruling dated and delivered in presence of Mr. Achura for Wasuna for Plaintiff.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
21/6/2017