[2012] KEHC 2226 (KLR)
The court found that the applicant is the registered proprietor of the suit land and that her title is adversely affected by the Tribunal's award. The existence of a substantial issue regarding the Tribunal's jurisdiction and the arguability of the main suit justified the preservation of the applicant's title....
Source-derived case information.
- Citation
- [2012] KEHC 2226 (KLR)
- Parties
- Plaintiff: Susan Nyamokami Mariga; Defendant: Francis Nyaata Marocha
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 234 of 2011
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Legal Topics
- Temporary Injunctions, Registered Land Title, Land Disputes Tribunal Awards, Jurisdiction of Tribunals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Nyamokami Mariga
Plaintiff
Francis Nyaata Marocha
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from implementing the Land Disputes Tribunal award on the suit land.
- 2 Whether the registered title of the applicant should be preserved pending the determination of the main suit.
- 3 Whether the Land Disputes Tribunal had jurisdiction over the dispute.
Ratio Decidendi
The court found that the applicant is the registered proprietor of the suit land and that her title is adversely affected by the Tribunal's award. The existence of a substantial issue regarding the Tribunal's jurisdiction and the arguability of the main suit justified the preservation of the applicant's title. Applying the principles in Giella vs Cassman Brown, the court held that the applicant had established a prima facie case with a probability of success and that the balance of convenience required maintaining the status quo. Consequently, the court granted the temporary injunction as prayed, restraining the respondent from implementing the Tribunal's award pending the hearing and...
Court Disposition
interlocutory injunction granted
Orders
- A temporary injunction is issued restraining the respondent, his agents, servants, or any other person from implementing the Suneka Land Disputes Tribunal award on parcel No. WANJARE/BOGIAKIMU/1791 pending the hearing and determination of the suit.
- Costs will follow the outcome of the main suit.
Full Case Text
Judgment text and source record
24 paragraphs
SUSAN NYAMOKAMI MARIGA..........................PLAINTIFF
-VERSUS-
FRANCIS NYAATA MAROCHA .................. DEFENDANT
RULING
The applicant prays for orders that pending the hearing and determination of the suit, the court issues an order of injunction restraining the respondent, his agents, servants or any other person from implementing the Suneka Land Disputes Tribunal’sawardonand parcelsNO. WANJARE/BOGIAKIMU/1791,the suit land. The application is grounded on a very detailed supporting affidavit deponed to by the applicant on 25th October 2011.
In the said affidavit she avers that she is the registered proprietor of the suit land and has attached thereto a copy of the official search certificate and green card. There is no doubt whatsoever, thereafter, that she is the sole lawful registered proprietor thereof.
The applicant plainly admits that there existed a boundary dispute between her and the respondent. The dispute concerned the extent and size of the suit land. Subsequently the respondent filed a claim before Suneka Land Disputes Tribunal being Case No. 45 of 2010. The Tribunal found for the respondent and made an award in his favour which was adopted as a judgment of the Court in Kisii CMC Misc. Appl. No. 64 of 2010 and thus, triggering the filing of the suit and this application.
The facts giving rise to the suit and subsequently the application now before me have been fully set out in the ruling of Makhandia J. given on 29th July 2011 and I need not rehash them here.
I have also read and considered in detail the written rival submissions canvassed by the parties.
The main suit is still pending hearing and determination. No doubt it is arguable since an existing registered title is adversely affected. The issue of jurisdiction has been raised. This is, indeed, a substantial issue in the suit. In view of all these concerns, it is only just that the title be preserved intact to abdicate unnecessary expense which may result if the title is altered.
Further, taking into account the principles by which courts have for years been guided in deciding whether or not to grant a temporary injunction – see Giella vs Cassman Brown & Co. Ltd [1973] EA 358
I am satisfied that the applicant has shown a prima case with a probability of success.
Again, justice being of paramount concern in such disputes as this, and taking every aspect of the case into account, I think the injunction ought to be granted as prayed and so I grant.
Costs will follow the outcome of the main suit.
It is so ordered.
Ruling dated, signedand delivered at Kisii this 23rd day of August, 2012.
R. LAGAT-KORIR
JUDGE
In the presence of :
Edwin Mongare Court clerk
.............................Counsel for the plaintiffs/Appellant
.............................Counsel for the defendants/respondent
R. LAGAT-KORIR
JUDGE