[2013] KEHC 2507 (KLR)
The court found that the applicant failed to properly serve the 1st defendant, precluding the issuance of orders against him in accordance with the rules of natural justice. The court further held that the 1st defendant was the registered owner of L.R. No. Ndivisi/Makuselwa/89 at the time of the alleged trespass,...
Source-derived case information.
- Citation
- [2013] KEHC 2507 (KLR)
- Parties
- Plaintiff: Tom Lihru Wanambisi; Defendant: Dickson W. Babandege; Defendant: Agricultural Finance Corporation; Defendant: Paul Oketch t/a Pambo Investment
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 83 of 2012
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Land Title Transfer, Trespass, Mortgage Realization
- 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
Tom Lihru Wanambisi
Plaintiff
Dickson W. Babandege
Defendant
Agricultural Finance Corporation
Defendant
Paul Oketch t/a Pambo Investment
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the 1st defendant from interfering with L.R. Nos. Ndivisi/Makuselwa/89 and 90 pending the hearing and determination of the suit.
- 2 Whether the transfer of L.R. No. Ndivisi/Makuselwa/89 to the 1st defendant was irregular and unlawful.
- 3 Whether the actions of the 1st defendant amount to trespass given his registration as owner.
Ratio Decidendi
The court found that the applicant failed to properly serve the 1st defendant, precluding the issuance of orders against him in accordance with the rules of natural justice. The court further held that the 1st defendant was the registered owner of L.R. No. Ndivisi/Makuselwa/89 at the time of the alleged trespass, and any challenge to the manner of acquisition of title must be determined at full trial. The court emphasized that Order 40 of the Civil Procedure Rules is designed to preserve the status quo and prevent imminent harm, not to undo events that have already occurred. Since the alleged acts of destruction and interference took place prior to the application, the court declined to...
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed with costs to the 2nd and 3rd defendants.
- Any earlier ex parte orders are vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE E & L COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO. 83 OF 2012
TOM LIHRU WANAMBISI.................................................. PLAINTIFF
VERSUS
DICKSON W. BABANDEGE ……………................. 1ST DEFENDANT
AGRICULTURAL FINANCE CORPORATION............... 2ND DEFENDANT
PAUL OKETCH t/a PAMBO INVESTMENT ….............. 3RD DEFENDANT
RULING
The applicant has moved this court under order 40 of the Civil Procedure Rules and Sec. 1A, 1B & 3A of the Civil Procedure Act seeking;
“ a temporary order of injunction to be issued restraining the 1st defendant, his servants and or agents from trespassing into, taking possession, destroying any property and or interfering with L.R. Nos. Ndivisi/Makuselwa/89 and 90 pending the hearing and determination of this suit.”
He also prayed for costs of the application. The application is based on the grounds on the face of it and the supporting affidavit sworn by Tom. L. Wanambisi, the applicant on 25th October 2012. He also swore a further affidavit on 6th February 2013 in support of his application.
Briefly he is seeking to restrain the 1st defendant for interfering with his two parcels of land, L.R. No. Ndivisi/Makuselwa/89 and 90. That the 1st defendant did destroy his property on 29th December 2010 and a second time on 17th October 2012. The transfer of L.R No. Ndivisi/Makuselwa/89 to the 1st defendant according to him was irregular and unlawful.
The 2nd and 3rd defendants have filed a replying affidavit to oppose the application. The 1st defendant did not file any documents to the application or the suit. However on 29th January 2013, I made an order directing the applicant to properly serve the 1st defendant. He never made such efforts. It is my finding that the 1st defendant has not been served and therefore no orders will issue as against him as that will go against the rules of natural justice. It was incumbent upon the applicant to properly serve him especially with the plaint and summons to enter appearance before taking any steps in the future.
Although the orders as per the presentation of the application were strictly to issue against the 1st defendant, the 2nd & 3rd defendants were served. They have filed their response and therefore I will consider their response visa vi the merit of the application. The 2nd defendant advanced to the applicant a loan in the sum of Kshs. 330,000/= on 10th January 2005. This is not denied. What the applicant denies is the manner in which the security was realized. This court has noted from the documents filed that the sale took place on 16th April 2010. The suit property was thereafter transferred to the 1st defendant on 11th January 2011. According to him, the 1st defendant moved onto the suit property on 29th Dec 2010. He is seeking to stop/injunct what took place two years back.
In any event the 2nd activities of the 1st defendant complained of which took place on 17th October 2012 on L.R No Ndivisi/Makuselwa/89 cannot amount to trespass. As at this date, the 1st defendant was the registered owner of the suit parcel. The manner in which he acquired title can only be questioned and determined at full trial of the case. Similarly, issues on whether the sale and transfer to the 2nd defendant was lawfully and regularly done are for determination during a full hearing. The destructions undertaken on L.R. Ndivisi/Makuselwa/90 if at all, took place in 2010 and this court is unable to issue the orders sought as the same would go against the intention and purpose of order 40. Order 40 is to preserve what is about to happen and not to undo an event that has already taken place.
I have read through the list of case law annexed in support of the application. They relate to the provisions of section 6 (1) referring to obtaining of Land Control Board consent. I find them not applicable at this stage of the application. Probably the applicant can refer to them in his final submissions after the suit is heard.
Consequently, I find this application as lacking in merit and dismiss it with costs to the 2nd & 3rd defendant. For avoidance of doubt, the earlier orders given exparte are also vacated.
RULING DATED, SIGNED, READ and DELIVERED in open court this 29th day of August 2013.
A.OMOLLO
JUDGE.