Abel Nyakundi v Tapkigen Langat [2017] KEELC 135 (KLR)

REPUBLIC OF KENYA

IN THE ENVIORNMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO.  358 OF 2017

ABEL NYAKUNDI……………………….…………..PLAINTIFF

VERSUS

TAPKIGEN  LANGAT………………..…………….DEFENDANT

RULING

(Application for injunction; plaintiff having purchased the suit land from the defendant; defendant now refusing to transfer the land to the plaintiff; plaintiff seeking an injunction pending hearing of the suit; application not opposed by the defendant; prima facie case established; application for injunction allowed)

1. This suit was commenced by way of a plaint that was filed on 25 September 2017. In his suit, the plaintiff has pleaded that on 10 November 2006 he entered into a sale agreement with the defendant, whereby the defendant sold to the plaintiff 5 acres out of the Plot No. 396, Ol Jorai Settlement Scheme at an agreed price of Kshs. 135,000/=. The plaintiff has averred that he paid the full amount and took possession of the 5 acre piece which he has been using to date. He has stated that after the transaction, a title deed to the Plot No. 396 was prepared and the land now became registered as Naivasha Ol Jorai Phase II/719 which land comprised of 10 acres. The mother title was later surrendered and the land subdivided to bring forth the land parcels Naivasha Ol Jorai Phase II/5227 and 5228 both comprising of 5 acres each. The portion that the plaintiff claims to have purchased is the portion comprised in the land parcel No. 5228. He has stated that on 8 November 2016, the defendant handed to him the title deed to the said parcel of land but has refused to sign the transfer forms. She later turned hostile and demanded her title deed back and owing to pressure the plaintiff released the said title deed to the defendant. In his suit, the plaintiff wants the defendant compelled to transfer the said land parcel No. 5228 and for an order of permanent injunction against the defendant from interfering with the said land.

2. Together with the plaint, the plaintiff filed an application for injunction seeking to have the defendant restrained from any dealings in respect of the land parcel No. 5228 and for the defendant to be compelled to surrender and deposit the original title deed in court pending hearing and determination of this case. It is that application which is the subject of this ruling.

3. Despite being served, the defendant has not filed any appearance and has not responded to the application for injunction. The only material that I have is therefore that supplied by the plaintiff.

4. In his supporting affidavit, the plaintiff has more or less repeated the averments in the plaint and has annexed a copy of the agreement that he had with the defendant and a copy of the title deed to the land parcel No. 5228 which title is in the name of the defendant.

5. I have considered the application. To succeed in such an application, one needs to demonstrate a prima facie case with a probability of success and also show that he stands to suffer irreparable loss if the injunction is not granted. Where the court is in doubt, the application will be decided on a balance of convenience. These principles were laid down in the case of Giella vs Cassman Brown (1973) EA 358 and I stand guided by them.

6. I have no reason to doubt that the defendant sold to the plaintiff 5 acres of the then Plot No. 396 in Ol Jorai Settlement Scheme. I have indeed seen the agreement which was annexed by the plaintiff. I also have no reason to doubt that the 5 acres is now comprised in the land parcel Naivasha/Ol Jorai Phase II/5228 which title I have seen is in the name of the defendant. In my view, the plaintiff has demonstrated a prima facie case with a probability of success given that the defendant has not controverted the averments of the plaintiff. If the defendant is allowed to deal with the land or interfere with the plaintiff's quiet possession of the same, the plaintiff will no doubt suffer irreparable loss. I am therefore persuaded that the plaintiff has made out a case for an injunction. The only thing I am not persuaded to grant is the order seeking for deposit of the title deed. I believe that the title can be safeguarded by an order of inhibition, inhibiting the registration of any disposition in the register of the land parcel Naivasha/Ol Jorai Phase II/5228.

7. Given the above, I now make the following orders :-

(i) That an order of injunction is hereby issued stopping the defendant, her servants/agents or assigns from selling, charging, leasing or entering into any disposition in respect of the land parcel Naivasha/Ol Jorai Phase II/5228 until this case is heard and determined.

(ii) That an order of injunction is hereby issued, stopping the defendant, her servants/agents and/or assigns from entering, being upon, using, or in any other way interfering with the plaintiff's quiet possession of the land parcel Naivasha/Ol Jorai Phase II/5228 until this case is heard and determined.

(iii) That an order of inhibition is hereby issued, inhibiting the registration of any disposition in the register of the land parcel Naivasha/Ol Jorai Phase II/5228 until this case is heard and determined.

(iv) The costs of the application will be costs in the cause.

8. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 2nd   day of November 2017.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT AT NAKURU

In presence of : -