[2011] KEHC 3159 (KLR)
The court found that the issuance of an inhibition order over parcel Maua/Amwathi/5368 is merited to preserve the subject matter of the dispute pending the outcome of the plaintiff's appeal. The court reasoned that such an order would prevent the transfer or alienation of the land, thereby ensuring that the appeal,...
Source-derived case information.
- Citation
- [2011] KEHC 3159 (KLR)
- Parties
- Plaintiff: Thomas Gitonga M’Rukunga; Defendant: Stephen Ngiri; Defendant: Land Adjudication Officer; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 68 of 1992
- Procedural Posture
- Civil Case / Ruling on Application for Inhibition Pending Appeal
- Outcome
- Application for inhibition granted.
- Judges
- MM Kasango
- Legal Topics
- Land Inhibition Orders, Pending Appeal Protection, Land Adjudication Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Gitonga M’Rukunga
Plaintiff
Stephen Ngiri
Defendant
Land Adjudication Officer
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application for Inhibition Pending Appeal
Legal Issues
- 1 Whether an order of inhibition should be issued over parcel Maua/Amwathi/5368 pending the determination of the plaintiff's appeal.
- 2 Whether the plaintiff has demonstrated sufficient grounds for preservation of the suit property during the pendency of the appeal.
Ratio Decidendi
The court found that the issuance of an inhibition order over parcel Maua/Amwathi/5368 is merited to preserve the subject matter of the dispute pending the outcome of the plaintiff's appeal. The court reasoned that such an order would prevent the transfer or alienation of the land, thereby ensuring that the appeal, if successful, would not be rendered nugatory. The absence of opposition from the Attorney General and the 1st defendant's statement that he does not intend to alienate the land further supported the appropriateness of the order. The court exercised its discretion to grant the inhibition, noting that the balance of convenience favored preservation of the property until the...
Court Disposition
Application for inhibition granted.
Orders
- An order of inhibition is hereby issued over parcel number Maua/Amwathi/5368 until the determination of the plaintiff’s appeal before Court of Appeal or until further orders of this court.
- The costs of the Notice of Motion dated 2nd December 2010 shall abide with the outcome of the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HIGH COURT CIVIL CASE NO. 68 OF 1992
THOMAS GITONGA M’RUKUNGA ………...................…………PLAINTIFF
VERSUS
STEPHEN NGIRI …………………………….........………. 1ST DEFENDANT
LAND ADJUDICATION OFFICER ……………...........….. 2ND DEFENDANT
ATTORNEY GENERAL …………………..........…………. 3RD DEFENDANT
RULING
Thomas Gitonga M’Rukunga the plaintiff herein sought by this action a declaration that the defendants Stephen Ngiri and the land adjudication officer had by collusion taken his 10 points from parcel number Maua/Amwathi/3136 and further sought a declaration that the same was given to the 1st defendant and included in the 1st defendant’s parcel number 5368. This court by its judgment delivered on 19th November 2010 found that the plaintiff had not proved his case on a balance of probability. The plaintiff’s case was dismissed. The plaintiff was aggrieved by that judgment and has filed a Notice of Appeal dated 22nd November 2010. Now the plaintiff seeks orders of inhibition to issue over parcel Maua/Amwathi/5368 until the final determination of the intended appeal. Learned counsel Mr. Kaumbi for the plaintiff submitted that inhibition would ensure the land in question is preserved so that the appeal would not be defeated by any other transfer of that land. The 1st defendant in the replying affidavit stated that he took possession of that land in 1987 and constructed a semi permanent kiosk and garage thereon. His learned counsel Mr. B.G. Kariuki stated in submissions that the 1st defendant has no intention to alienate that land. The application for inhibition was not opposed by the attorney general. The application for inhibition as correctly submitted by the plaintiff will ensure that the parcel of land is not transferred to other parties while the appeal is pending. It is therefore merited. I grant the following orders:-
1. An order of inhibition is hereby issued over parcel number Maua/Amwathi/5368 until the determination of the plaintiff’s appeal before Court of Appeal or until further orders of this court.
2. The costs of the Notice of Motion dated 2nd December 2010 shall abide with the outcome of the appeal.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE