[2017] KEELC 3648 (KLR)
The court found that the plaintiff had established a prima facie case by producing valid sale agreements for the suit land, to which the 1st defendant was a witness. The defendants failed to demonstrate any basis for invalidating the agreements or for their continued occupation of the property. Letters from local...
Source-derived case information.
- Citation
- [2017] KEELC 3648 (KLR)
- Parties
- Plaintiff: Stefana Nicolosi; Defendant: Garama Shutu Mitsanze aka Gabriel Garama; Defendant: Francis Karisa Ngumbao
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 127 of 2016
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Application for Temporary Injunction Pending Hearing and Determination of Suit
- Outcome
- Application for temporary injunction allowed.
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Land Sale Agreements, Possession and Occupation, Capacity to Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stefana Nicolosi
Plaintiff
Garama Shutu Mitsanze aka Gabriel Garama
Defendant
Francis Karisa Ngumbao
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Application for Temporary Injunction Pending Hearing and Determination of Suit
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of a temporary injunction over plot number 60 in Mambrui/Sabaki Squatter Settlement Scheme pending determination of the suit.
- 2 Whether the sale agreements between the plaintiff and the defendants' predecessor were valid and enforceable.
- 3 Whether the defendants have any legal basis to remain on or interfere with the suit property.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by producing valid sale agreements for the suit land, to which the 1st defendant was a witness. The defendants failed to demonstrate any basis for invalidating the agreements or for their continued occupation of the property. Letters from local authorities supported the plaintiff's claim to the land. The court concluded that the plaintiff was entitled to protection by way of a temporary injunction to preserve the status quo pending the full hearing and determination of the suit.
Court Disposition
Application for temporary injunction allowed.
Orders
- The respondents, their servants, agents, employees and/or any other person claiming under them are restrained by way of temporary injunction from dealing, leasing, constructing, selling, cultivating, wasting, damaging, intruding, trespassing, developing and/or interfering with plot number 60 in Mambrui/Sabaki...
- Costs of the application to be provided for.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CASE NO. 127 OF 2016
STEFANA NICOLOSI.........................................................PLAINTIFF
=VERSUS=
GARAMA SHUTU MITSANZE aka
GABRIEL GARAMA...............................................1ST DEFENDANT
FRANCIS KARISA NGUMBAO.............................2ND DEFENDANT
R U L I N G
1. The Notice of Motion before me is the one dated 24th May, 2016. In the Application, the Plaintiff is seeking for the following reliefs:
(a) THAT the Respondents, their servants, agents, employees and /or any other person claiming under them be restrained by way of temporary injunction from dealing, leasing, constructing, selling, cultivating, wasting, damaging, intruding, trespassing, developing and/or interfering with plot number 60 in Mambrui/Sabaki Squatter Settlement Scheme pending the hearing and determination of this suit.
(b) THATthe costs of this application be provided for.
2. According to the Plaintiff’s Affidavit, he bought one (1) acre of land from the late Shutu Mitsanze Mwaboya vide an agreement of 17th December, 2004; that on 10th April, 2006, he purchased a further 1. 58 acres from the family of Shutu Mitsanze and that by the time of the purchase, the letter of offer was still in the name of Shutu Mitsanze Mwabaya who is the father of the 1st Respondent.
3. It is the Plaintiff's case that at the time of the purchase, the Respondents agreed to demolish the structures that were on the land and that the 1st Respondent has now refused to vacate the land and to hand over to the original letter of offer.
4. In response, the 1st Respondent deponed that the Applicant has not described the suit property; that the 1st Respondent’s father had no capacity to execute the sale agreements since the letter of offer is not a proprietary document and that it is unfair to restrain the 1st Respondent’s family from utilizing plot number 60 Mambrui which they all live on.
5. In his further Affidavit, the Plaintiff has deponed that after demolishing the Respondent’s homes as per the agreement, he moved on the land and that he has been in occupation of the same for the past ten (10) years.
6. The parties' advocates' filed submissions which I have considered.
7. It is not in dispute that the Defendant’s father sold land measuring 2. 58 acres to the Plaintiff vide sale agreements dated 17th December, 2004 and 10th April, 2006.
8. The agreement of sale exhibited by the Plaintiff shows that the 1st Respondent was one of the witnesses to the said agreements.
9. Indeed, in the letter dated 18th October 2013, the village elder confirmed that it is the Plaintiff who is entitled to the suit land. The Assistant Chief of Mamboreni Sub location also supported that position vide his letter dated 25th February, 2014.
10. The Defendant has not laid any basis to show that prime facie, the sale Agreements of 17th December, 2014 and 10th April 2006 are invalid.
11. For those reasons, I allow the Application dated 24th May, 2016 in the following :
(a) THAT the Respondents, their servants, agents, employees and /or any other person claiming under them be and is hereby restrained by way of temporary injunction from dealing, leasing, constructing, selling, cultivating, wasting, damaging, intruding, trespassing, developing and/or interfering with plot number 60 in Mambrui/Sabaki Squatter Settlement Scheme pending the hearing and determination of this suit.
(b) THAT costs of this application be provided for.
Dated, signed and delivered in Malindi this3rdday of February, 2017.
O. A. Angote
Judge