[2021] KEELC 139 (KLR)
The court found that the applicant had established a right to ownership of the suit land, which was registered in the name of the deceased by virtue of a court decree and judgment. The subsequent transfer of the property to the defendants shortly after the death of the registered owner raised serious questions that...
Source-derived case information.
- Citation
- [2021] KEELC 139 (KLR)
- Parties
- Plaintiff: Silas Kirimi Samwel; Defendant: John Muriira Riungu; Defendant: David Muchai Samwel; Defendant: Joseph Kiogora; Defendant: Susan Kendi Kirimi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 33 of 2021
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Inhibition and Injunction
- Outcome
- Application allowed. Inhibition and temporary injunction orders granted for one year.
- Legal Topics
- Temporary Injunctions, Inhibition Orders, Land Title Disputes, Ownership Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Kirimi Samwel
Plaintiff
John Muriira Riungu
Defendant
David Muchai Samwel
Defendant
Joseph Kiogora
Defendant
Susan Kendi Kirimi
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Inhibition and Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of temporary injunction and inhibition orders over the suit land.
- 2 Whether the applicant is likely to suffer irreparable loss if the orders are not granted.
- 3 Whether the balance of convenience favors the grant of the orders sought.
Ratio Decidendi
The court found that the applicant had established a right to ownership of the suit land, which was registered in the name of the deceased by virtue of a court decree and judgment. The subsequent transfer of the property to the defendants shortly after the death of the registered owner raised serious questions that warranted preservation of the property pending full hearing. The respondents did not oppose the application, and the applicant satisfied the requirements for grant of a temporary injunction and inhibition order as set out in Giella v Cassman Brown. The court held that the circumstances justified the preservation of the property to prevent irreparable loss and to protect the...
Court Disposition
Application allowed. Inhibition and temporary injunction orders granted for one year.
Orders
- An inhibition order is issued over L.R Ntima/Nkariua/700 for a period of one year.
- A temporary injunction is issued restraining any dealings with L.R Ntima/Nkariua/700 pending hearing and determination of the suit, for a period of one year.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC NO. 33 OF 2021
SILAS KIRIMI SAMWEL ………………………...…………….. PLAINTIFF
VERSUS
JOHN MURIIRA RIUNGU …………….….……………… 1ST DEFENDANT
DAVID MUCHAI SAMWEL ……….……..…….……….. 2ND DEFENDANT
JOSEPH KIOGORA …………………….…….………….. 3RD DEFENDANT
SUSAN KENDI KIRIMI …………….……….……..……. 4TH DEFENDANT
RULING
1. By a notice of motion dated 1. 11. 2021 the applicant seeks for inhibition orders over L.N Ntima/Nkariua/700 and a temporary injunction over L.R Ntima/Nkariua/700 pending hearing and determination of this suit. The application is supported by the applicant’s affidavit sworn on 1. 11. 2021.
2. The grounds are that the suit land is registered under the name of Silas Kirimi Ngatuni having acquired it by virtue of a decree of this court following a judgment made on 11. 8.2018 but has passed on 15. 7.2021.
3. However it is averred upon his death the property was allegedly transferred to the defendants on 26. 8.2021.
4. For a party to be entitled to temporary injunction he has to establish a prima facie case with a probability of success at the hearing. Secondly he has to establish he is likely to suffer irreparable loss and damage which may not be compensated by way of damages and lastly that the balance of convenience tilts in favour of granting the orders. See Giella–vs-Cassman Brown[1973] EA 358.
5. In this case, the deceased was granted the suit land through a regular decree of this court and judgment to which he was registered as the owner. How the changes were effected over the title especially so soon after his death are circumstances which shall be interrogated at the hearing.
6. The respondents though served have not opposed the orders sought.
7. The applicant has established a right to ownership which under Article 40 of the Constitution as read together with Order 40 of the Civil Procedure Rules requires protection as held in MraoLtd v.First American Bankof Kenya Ltd and 2 Others [2003] eKLR.
8. Similarly under Section 68 of Land Registration Act, the court is granted powers to issue orders for the preservation of the suit land on deserving cases such as this one where it is apparent there are issues requiring determination during the hearing.
9. The circumstances as set out in the application and the supporting affidavit in my considered view call for the preservation of the property. I allow the application in terms of prayers 3 and 4 for a period of one year.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH DAY OF DECEMBER, 2021
In presence of:
Wambua for respondents
Karanja for applicant
Court Assistant – Kananu
HON. C.K. NZILI
ELC JUDGE