[2022] KEELC 806 (KLR)
The court found that the applicants failed to provide concrete evidence of any imminent transfer or disposal of the suit land by the respondent following the confirmation of grant. The applicants did not attach a current certificate of search or any proof of intention to alienate the property. The court held that...
Source-derived case information.
- Citation
- [2022] KEELC 806 (KLR)
- Parties
- Plaintiff: Victor Mutuiri Gitonga (Suing as an administrator of the estate of the late Gideon Gitonga Nkaabu); Plaintiff: Jacqueline Nkirote Gitonga (Suing as an administratrix of the estate of the late Gideon Gitonga Nkaabu); Plaintiff: Vincent Kimathi Gitonga (Suing as an administrator of the estate of the late Gideon Gitonga Nkaabu); Plaintiff: Jaspher M’Arimba Ngutari; Defendant: Mercy Nyawira Kinyua (Sued as the administratrix of the estate of the late Dionysius Muturuchiu Kinyua)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Originating Summons E016 of 2021
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Application for Inhibition Order
- Outcome
- application dismissed
- Legal Topics
- Adverse Possession, Inhibition Orders, Succession and Estates, Land Registration, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Mutuiri Gitonga (Suing as an administrator of the estate of the late Gideon Gitonga Nkaabu)
Plaintiff
Jacqueline Nkirote Gitonga (Suing as an administratrix of the estate of the late Gideon Gitonga Nkaabu)
Plaintiff
Vincent Kimathi Gitonga (Suing as an administrator of the estate of the late Gideon Gitonga Nkaabu)
Plaintiff
Jaspher M’Arimba Ngutari
Plaintiff
Mercy Nyawira Kinyua (Sued as the administratrix of the estate of the late Dionysius Muturuchiu Kinyua)
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Application for Inhibition Order
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant an inhibition order against L.R No. Abogeta/Lower-Kiungone/236.
- 2 Whether there is sufficient evidence of imminent alienation or disposal of the suit land by the respondent to justify inhibition.
- 3 Whether the balance of convenience favours the grant of an inhibition order in the circumstances.
Ratio Decidendi
The court found that the applicants failed to provide concrete evidence of any imminent transfer or disposal of the suit land by the respondent following the confirmation of grant. The applicants did not attach a current certificate of search or any proof of intention to alienate the property. The court held that mere apprehension, unsupported by evidence, does not justify the grant of an inhibition order. Furthermore, the respondent had filed a counterclaim seeking vacant possession and a permanent injunction, shifting the balance of convenience against the applicants. As the applicants' rights had not crystallized and the main suit was yet to be heard, the court concluded that the...
Court Disposition
application dismissed
Orders
- The application dated 14.12.2021 is dismissed with costs.
- Parties to comply with Order 11 within 48 days and list the matter for hearing.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC ORIGINATING SUMMONS NO. E016 OF 2021
VICTOR MUTUIRI GITONGA (Suing as an administrator of the estate of the late
GIDEON GITONGA NKAABU – (Deceased)...................................1ST PLAINTIFF
JACQUELINE NKIROTE GITONGA (Suing as an administratrix of the estate of the late
GEDEON GITONGA NKAABU (Deceased)....................................2ND PLAINTIFF
VINCENT KIMATHI GITONGA (Suing as an administra.tor of the estate of the late
GIDEON GITONGA NKAABU (Deceased)...................................3RD PLAINTIFF
JASPHER M’ARIMBA NGUTARI................................................4TH PLAINTIFF
VERSUS
MERCY NYAWIRA KINYUA (Sued as the administratrix of the estate of the late
DIONYSIUS MUTURUCHIU KINYUA (Deceased)........................DEFENDANT
RULING
A. THE PRAYERS
1. The application before the court is the one dated 14. 12. 2021 brought under Section 68 of the Land Registration Act seeking for an order of inhibition against L.R No. Abogeta Lower-Kiungone/236. The application is supported by an affidavit of Victor Muuri Gitonga sworn on 30. 11. 2021.
2. The grounds upon which the application is based are that the respondent has obtained a confirmation of grant, the subject matter herein forming part of the estate of the late Dionysius Muturuchiu Kinyua and there was fear that the subject land may be alienated by the respondent.
B. GROUNDS OF OPPOSITION
3. The respondent opposeD the application through a replying affidavit sworn on 30. 12. 2021 on the basis that the application lacks factual or legal basis; the deponent has no authority to swear the affidavit; it has been now 4 ½ years since the grant was issued with the knowledge of the applicants who were parties to the succession cause and that they had no intention to dispose the suit property hence there existed no justification to inhibit the land.
C. PLEADINGS
4. The plaintiffs approached this court through an originating summons dated 26. 5.2021 seeking for an order that they be declared as adverse possessors of L.N. No. Abogeta/Lower-Kiungone/236 which they have allegedly occupied and developed since 1889.
D. INHIBITION ORDERS
5. Section 68 of Land Registration Act grants a court powers to issue an inhibition order which in essence has been described as an equivalent of a prohibitory injunction.
6. For a party to be entitled to a prohibitory injunction, three parameters must be met namely:- a prima facie case with a probability of success, prove of irreparable loss and damage and lastly the balance of convenience should tilt in favour of granting the injunction. A prima facie case has been described in Mrao Ltd –vs- First American Bank of Kenya & 2 others [2018] eKLRas where it has been established a right which has been breached by the opposite party so as to call for the others’ rebuttal.
7. In this suit, the respondent filed a response sworn by Mercy Nyawira Kinyua on 21. 6.2021.
8. The applicants’ rights if any are yet to crystalize given the court is yet to hear the case and determine the issues as raised by the parties.
9. The originating summons relates to L.N.No. Abogeta/Lower-Kiungone/236. The copy of records attached is for Parcel No. 236. The entries thereto indicate there has been both a caution and an inhibition which were registered on 13. 10. 2007 and 31. 10. 2007 respectively.
10. The applicants have attached no certificate of search to confirm if that the suit land has been transferred to the respondents after the confirmation of grant. In absence of current search certificate and evidence of any intention by the respondents to dispose the suit land, my finding is that a mere apprehension which is not backed by any concrete evidence may not entitle the applicants as deserving the orders sought.
11. Lastly, the respondents have filed a counterclaim to the originating summons seeking for vacant possession and permanent order of injunction. The balance of convenience therefore tilts in against granting the orders sought.
12. In sum, the application dated 14. 12. 2021 is dismissed with costs.
13. Parties to comply with Order 11 within 48 days and list the matter for hearing.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU THIS 16TH DAY OF MARCH, 2022
In presence of:
No appearance for parties
Court Assistant – Kananu
HON. C.K. NZILI
ELC JUDGE