David Oprong George v Norah Adiambo Omuse (as legal Representative of Basil Pamba Okomuli (Deceased) [2015] KEHC 4408 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA

ELC. NO. 09 OF 2012.

IN THE MATTER  OF THE LIMITATION  OF ACTIONS ACT CAP 22

OF LAWS OF KENYA

AND

IN THE  MATTER OF THE LAND REGISTRATION ACT NO. 3  OF 2012

AND

IN THE MATTER  OF A CLAIM FOR ADVERSE POSSESSION

BETWEEN

DAVID OPRONG GEORGE……………………………………………………APPLICANT

-VERSUS-

NORAH ADIAMBO OMUSE (As legal

Representative  of BASIL PAMBA OKOMULI alias

OMUSE OPAMA IKOMULI (DECEASED)……………......……………. RESPONDENT.

R U L I N G.

1. DAVID OPRONG GEORGE,The Applicant, through his counsel filed the Notice of Motion under certificate of urgency dated 12th November, 2014 for inhibition and temporary injunction on land parcel South Teso/Apokor/1350.  The application is based on five grounds on the face of it and Applicant’s supporting affidavit sworn on 28th October, 2014.

2. The application is opposed by Norah Adhiambo Amuse, the Respondent, who filed  a replying  affidavit , through  her counsel  sworn on 5th May, 2015.

3. The main issue for determination is whether the Applicant has presented facts to prima facie show that the Respondent intends to dispose off the suit land and if so, whether the orders sought should be issued.

4. The application came up for hearing on 6th May, 2015.  Mr. Onsongo and MS. Imwene  for the Applicant and Respondent respectively presented  their submissions. The  court has  carefully  considered the grounds  on the application, the counsel ‘s submissions, the supporting and replying affidavits and find as follows;

a) That the suit  land  South Teso/Apokor/1350 is a subdivision  of South Teso/Apokor/1318  as confirmed in the copy of  the register  filed with the originating  summons  dated 24th October, 2012.

b) That the suit land is registered in the names of  Omuse Opama Ikomuli since 17th January, 1986.

c) That the said Omuse  Opama Ikomuli alias Basil Pamba  Ikomoli died on 1st July, 2002 and the Respondent  herein was appointed  the administratrix  of the deceased’s estate on 26th July, 2011 in Busia H.C. Succession Cause No. 182 of 2011 as confirmed by the copy of the grant filed with the said originating  summons.

d) That the appointment  of the Respondent as the administratrix  of her deceased father’s  estate  has not been challenged and between  the Applicant  and the Respondent, the  latter prima facie has a better claim  than the former over the suit land and an injunction cannot issue against her at this stage.

e) That the Applicant has not presented any tangible facts to support his claim that the Respondent intends to alienate the suit land.  The court notes that the title to the suit land has been restricted by the Land Registrar through the Applicant’s  application.  The Land Registrar can only lift the inhibition in accordance with section 73 of the Land Registration Act 2012 which requires the one who filed the caution to be involved. There is nothing to show that the due process would not be followed in the event the restriction filed is to be lifted and there is no need to issue an inhibition order.

5. That having found as above, the court finds no merit in the application under certificate of urgency dated 12th November, 2014 and the application is dismissed with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON ….11TH….DAY OF JUNE, 2015.

IN THE PRESENCE OF;

APPLICANT……….. PRESENT……………………………………

RESPONDENT……PRESENT………………………………………

COUNSEL……MR. IPAPU FOR ONSONGO FOR APPLICANT.…………………..