[2009] KEHC 3144 (KLR)
The court found that, given the dispute over ownership of the suit property and the risk of change in registration, it is necessary to preserve the current state of ownership until the suit is determined. The absence of a counter-claim by the defendant does not preclude the grant of preservation orders where the...
Source-derived case information.
- Citation
- [2009] KEHC 3144 (KLR)
- Parties
- Plaintiff: Terah Mutethia Mugambi; Defendant: John Muthomi M’Rewa
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 99 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application (ruling on Notice of Motion for Inhibition/status Quo)
- Outcome
- Status quo order granted; costs in the cause.
- Judges
- MM Kasango
- Legal Topics
- Ownership Dispute, Status Quo Orders, Inhibition Orders, Succession Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Terah Mutethia Mugambi
Plaintiff
John Muthomi M’Rewa
Defendant
Procedural Posture
Civil Case / Interlocutory Application (ruling on Notice of Motion for Inhibition/status Quo)
Legal Issues
- 1 Whether an order of inhibition or status quo should be issued to preserve the suit property pending determination of the ownership dispute.
- 2 Whether the defendant is entitled to preservation orders despite not filing a counter-claim.
Ratio Decidendi
The court found that, given the dispute over ownership of the suit property and the risk of change in registration, it is necessary to preserve the current state of ownership until the suit is determined. The absence of a counter-claim by the defendant does not preclude the grant of preservation orders where the interests of justice require maintenance of the status quo. The court therefore ordered that the status quo in respect of ownership of L.R. NO. KIIRUA/NKANDO/343 be maintained and registered against the title pending the suit's determination.
Court Disposition
Status quo order granted; costs in the cause.
Orders
- Status quo to be maintained in respect of ownership of L.R. NO. KIIRUA/NKANDO/343 pending determination of the suit, to be registered against the title.
- Costs of the Notice of Motion dated 1st September 2008 to be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 99 of 2007
TERAH MUTETHIA MUGAMBI …..... RESPONDENT/PLAINTIFF
VERSUS
JOHN MUTHOMI M’REWA ………… APPLICANT/DEFENDANT
RULING
The plaintiff’s suit seeks a declaration that L.R. No. KIIRU/NKANDO/343 measuring 28. 20 acres lawfully belongs to him. The defendant by his defence filed in court on 5th October 2007, stated that following the death of M’Mbijiwe Muronga the suit property, through Succession Cause No. 44 of 1991, was distributed to the beneficiaries.
The defendant filed a Notice of Motion dated 1st September 2008 seeking order of inhibition to be issued and registered on the suit property pending determination of this suit. In the affidavit in support of that application, the defendant deponed that he has possession of 10 acres of the suit property as per the distribution effected through Succession Cause No. 44 of 1991. His ownership of that portion of 10 acres, according to him, is threatened by the adjudicating officer who has written a letter intimating that he would allow a change of ownership of that land.
The plaintiff opposed the application. It was argued on behalf of the plaintiff that the defendant’s application cannot succeed because the defendant did not file a counter-claim, claiming ownership of the suit property. The plaintiff stated that the suit property belongs to him and is registered in his name.
I have considered both the arguments for and against the issue of orders of prohibition. I am of the view that it is imperative that the state of registration of the suit property be maintained until the determination of suit, which dispute essentially relates to ownership.
The order that commend itself is for status quo be maintained in respect of ownership of the suit property pending the determination of this suit.
I grant the following orders:-
(1)That status quo be maintained in respect of ownership of L.R. NO. KIIRUA/NKANDO/343 pending the determination of this suit. This order to be registered against that title.
(2)That the costs of the Notice of Motion dated 1st September 2008 be in the cause.
Dated at Meru this 9th day of July 2009.
MARY KASANGO
JUDGE