[2013] KEHC 1434 (KLR)
The court found that the applicant's claim to the suit property was extinguished when the original seller rescinded the sale agreement and refunded the deposit, as confirmed by the High Court in Misc. Application No. 3 of 2011. The respondent, as the registered owner, was not a party to the previous dispute and his...
Source-derived case information.
- Citation
- [2013] KEHC 1434 (KLR)
- Parties
- Plaintiff: Siriakus Bulemi Chungani; Defendant: Mary Shivachi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 68 of 2012
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctive Relief, Ownership Disputes, Land Title, Sale of Land, Land Disputes Tribunal, Prima Facie Case
- 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
Siriakus Bulemi Chungani
Plaintiff
Mary Shivachi
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant an injunction restraining the respondent from dealing with plot number IDAKHO/SAVANE/1290 pending determination of the suit.
- 2 Whether the applicant retains any enforceable interest in the suit property after the rescission of the sale agreement and refund of deposit.
- 3 Whether the respondent's title as registered owner is impeachable in the circumstances.
Ratio Decidendi
The court found that the applicant's claim to the suit property was extinguished when the original seller rescinded the sale agreement and refunded the deposit, as confirmed by the High Court in Misc. Application No. 3 of 2011. The respondent, as the registered owner, was not a party to the previous dispute and his title has not been nullified. Consequently, the applicant failed to establish a prima facie case with a probability of success, and the application for an injunction lacked merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 30.1.2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE NO. 68 OF 2012
SIRIAKUS BULEMI CHUNGANI …………………………………….……… PLAINTIFF
V E R S U S
MARY SHIVACHI ………………………………………………………….. DEFENDANT
R U L I N G
The application dated 30. 1.2013 seeks to restrain the plaintiff from dealing with plot number IDAKHO/SAVANE/1290 pending the hearing and determination of this suit. Counsel for both parties agreed to rely on the application and its supporting affidavit on the part of the applicant and the replying affidavit sworn on the 25. 2.2013 on the part of the respondent.
The applicant contends that he has been utilizing the suit property for a period of over 40 years and would like to have the status quo maintained pending the hearing and determination of this suit. The purpose of the application is to preserve the subject matter of the suit. In her supporting affidavit the applicant contends that the respondent is aware of the intricacies relating to the suit land including Kakamega High Court Misc. Application No. 3 of 2011, CMCC Misc. Application No. 78 of 2010 and Ikolomani Land Disputes Tribunal case number 10 of 2010.
The defendant in his replying affidavit maintains that he filed an application dated 19. 3.2012 seeking similar orders and the same has not been determined. He is the registered owner of the suit land and the decision of the land tribunal that was adopted by the Chief magistrate’s court was quashed by the High Court. He exhibited a copy of the title that was issued to him on the 14. 10. 2010.
I have gone through the pleadings herein and the ruling of Justice Kimaru in Misc. Application No. 3 of 2011. It is clear from that ruling that the applicant had bought the suit land from one MARY TSIALEKA KANIRA for KShs.70,000/=. The applicant paid a deposit of KShs.17,000/= leaving a balance of KShs.53,000/=. Later on the seller rescinded the sale agreement and returned the 17,000/= to the applicant’s advocate. Justice Kimaru quashed the decision of the Ikolomani Land Disputes Tribunal that had ordered the seller to receive the balance of KShs.53,000/= from the applicant after the expiry of over 10 years. In essence therefore, the applicant’s interest on the suit land was partly dealt with by Justice Kimaru. The fulcrum upon which a claim was based was removed through the decision in Misc. Application No. 3 of 2011. I do find that the applicant has no prima facie case with a probability of success against the respondent. The respondent bought the land and was not a party to the dispute before the Tribunal as well as the court.He is the registered owner of the suit property and his purchase has not been nullified by the court.
In the end I do find that the application dated 30. 1.2013 lacks merit and the same is hereby dismissed with costs.
Delivered, dated and signed at Kakamega this 30th day of October 2013
SAID J. CHITEMBWE
J U D G E