[2017] KEELC 1675 (KLR)
The court found that the Sale Agreements relied upon by the Defendants were invalid for lack of Land Control Board consent, rendering any contractual claim unenforceable. However, the Defendants' long, continuous, and exclusive possession of the suit land since 1993 entitled them to pursue a claim for adverse...
Source-derived case information.
- Citation
- [2017] KEELC 1675 (KLR)
- Parties
- Plaintiff: William Matee Ole Risa; Defendant: Stephen Muia Mbungo; Defendant: Mutua Malelu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2014
- Procedural Posture
- Notice of Motion / Interlocutory Application for Injunction Pending Hearing of Main Suit
- Outcome
- Defendants' application for injunction allowed.
- Judges
- OA Angote
- Legal Topics
- Injunctions, Adverse Possession, Land Title Disputes, Sale of Land, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Matee Ole Risa
Plaintiff
Stephen Muia Mbungo
Defendant
Mutua Malelu
Defendant
Procedural Posture
Notice of Motion / Interlocutory Application for Injunction Pending Hearing of Main Suit
Legal Issues
- 1 Whether the Defendants are entitled to an injunction restraining the Plaintiff from interfering with the suit property pending determination of the main suit.
- 2 Whether the Defendants have established a prima facie case for adverse possession or as purchasers of the suit land.
- 3 Whether the Sale Agreements relied upon by the Defendants are valid and enforceable.
Ratio Decidendi
The court found that the Sale Agreements relied upon by the Defendants were invalid for lack of Land Control Board consent, rendering any contractual claim unenforceable. However, the Defendants' long, continuous, and exclusive possession of the suit land since 1993 entitled them to pursue a claim for adverse possession. The court held that the substantive question of whether the Defendants are entitled to the land as purchasers or by adverse possession could only be determined at trial. In the interim, to preserve the subject matter and prevent irreparable harm, the court granted the interlocutory injunction sought by the Defendants, maintaining the status quo until the main suit is...
Court Disposition
Defendants' application for injunction allowed.
Orders
- An order of injunction is issued restraining the Plaintiff, his relatives, agents, and/or employees from alienating, disposing, or interfering with the Defendants' quiet possession, enjoyment, and use of the suit property pending hearing and determination of the main suit.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 32 OF 2014
WILLIAM MATEE OLE RISA.......................................PLAINTIFF
VERSUS
STEPHEN MUIA MBUNGO ...............................1ST DEFENDANT
MUTUA MALELU ............................................2ND DEFENDANT
RULING
1. In the Notice of Motion dated 13th March, 2015 Defendants are seeking for the following orders:
a. That an order of injunction do issue restraining the Respondent either by himself, relatives, agents and/or employees from alienating and disposing the suit property or in any way interfering with the Applicants’ quiet possession, enjoyment and use of the property pending the hearing and determination of the main suit.
b. That costs of the Application be in the cause.
2. In his Affidavit, the 1st Defendant has deponed that him, together with other people, purchased from the Plaintiff’s father in the early 1990’s land parcel number Kajiado/Kaputiei Central/467; that they developed their respective portions and that in the year 2013, the late Matee Ole Risa caused the land to be sub-divided and new title documents were issued in favour of his sons.
3. It is the Defendants’ case that they sued the late Matee Ole Risa in CMCC No. 423 of 2014 seeking for the cancellation of the titles in respect to the suit land; that after the death of Mr. Matee, his siblings started the process of sub-dividing the land again and that an injunctive order should issue.
4. In response, the Plaintiff deponed that plot number 467 ceased to exist when it was sub-divided by his late father and title documents issued; that the Defendants’ claim can only lie as against his father’s Estate if at all his father sold to them the suit land and that the Sale Agreements relied on by the Applicants do not specify the parcel of land subject which was the subject of sale transaction and that the Sale Agreements are not attested or executed.
5. It is the Plaintiff’s deposition that the purported sale was null and void for failure to seek the Land Control Board consent and that the Defendants on one hand purport that they are entitled to the suit land as purchasers while at the same time claim that they are entitled to the suit land by way of adverse possession.
6. The advocates appeared before the court on 21st April, 2015 and made oral submissions. I have considered those submissions.
7. The Defendants’ case is that they purchased the original parcel of land known as Kajiado/Kaputiei Central/467 from the Plaintiff’s father and that the suit property, which is currently registered in favour of the Plaintiff, was curved out of Plot No. 467.
8. The Defendants submitted that after purchasing the said land, they settled on the land and have put up permanent houses on their respective portions. The Defendants annexed photographs showing the nature of the developments that they have made on the land.
9. In their Counter-claim, the Defendants want the Plaintiff’s title declared invalid and a declaration that they have acquired the suit land by adverse possession.
10. The Sale Agreements annexed on the Defendants’ Affidavit do not indicate the land that the Defendants purchased. However, it is not clear to this court whether by the time the Defendants purported to purchase the said land, the same had been surveyed and a Title Deed issued.
11. Considering that the said agreements were entered into in 1993, and in view of the Defendants’ claim that they took possession of their respective portions upon purchasing them, the Defendants are entitled to claim the land by way of adverse possession.
12. Indeed, the failure of the parties to obtain the consent of the Land Control Board within six (6) months from the date the purported agreements were entered into means that those agreements became invalid and the Defendants only claim is on the basis that they have been in adverse occupation of the suit land for a period of twelve (12) years continuously, exclusively and peacefully.
13. Whether the Defendants have established that they are entitled to the suit land, either as purchasers or by way of adverse possession can only be dealt with conclusively after trial.
14. For now, and considering that the status quo should be maintained pending the hearing of the suit, the Defendants’ Application should be allowed.
15. For those reasons, I allow the Defendants’ Application dated 13th March, 2015 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.
O.A. ANGOTE
JUDGE