James Tengele Simon Njuguna [2017] KEHC 2185 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

ELC NO. 19 OF 2015

JAMES TENGELE………..…………………………..PLAINTIFF

VERUS

SIMON NJUGUNA……………….……..………… DEFENDANT

RULING

(Application seeking to have status quo on suit land maintained; application allowed; status quo to be maintained; order of inhibition to stop any dealings also issued)

1. The application before me is that dated 30 June 2017 filed by the plaintiff. It is an application seeking to have the status quo prevailing on the land parcel Kamara/Mau Summit Block 1/27 (Kiboko) (the suit land) maintained pending hearing of the suit. The application is supported by the affidavit of the plaintiff who has averred that he is the legal owner of the suit land and that despite this matter pending in court, the defendant has gone ahead to cultivate the whole land and has been selling parts of it. He has stated that if this is not stopped he stands to suffer irreparable loss and damage. The defendant is represented by the law firm of M/s J.K Ayusa & Company Advocates, and despite the application being duly served upon this law firm, nothing has been filed to respond to the application.

2. That suit itself was commenced on 28 January 2015 by way of plaint which plaint was amended on 27 August 2015. In the amended plaint, the plaintiff has averred that he is the beneficial owner of the suit land and that he sold one acre of it to the 1st defendant. He has claimed that the 1st defendant, in collusion with the rest of the defendants, has gone ahead to process title in his name for the whole of the land. He has averred that the title of the 1st defendant has therefore been fraudulently procured. In the suit, the plaintiff has asked for orders inter alia that the title deed of the 1st defendant be revoked and for a declaration that he is the legal owner of the suit land.

3. It will be noted that all that the applicant wants in this application is for the status quo to be maintained pending hearing and determination of the suit. In his application, he has stated that the defendant is cultivating on the whole of the parcel of land and selling parts of it. I suppose that the status quo order that the applicant wants is for the property to be preserved, as it is, pending hearing and determination of the suit.

4. It has been acknowledged that the defendants are cultivating the land and that status can continue prevailing pending the hearing and determination of this case. The defendants are however stopped from any further sale of the suit land or entering into any other disposition until this case is heard and determined. In addition, I issue an order of inhibition, restricting the registration of any disposition in the register of the land parcel Kamara/Mau Summit Block 1/207 (Kiboko) until this suit is heard and determined. The costs of this application shall be costs in the cause.

5. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 5th day of October, 2017.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In the presence  of  : -

No appearance on part of   M/s  Maritim  Omondi Advocates  for  plaintiff/applicant.

No appearance on part of M/s  J.K. Ayusa &  Co.  Advocate for the defendant/respondent.

Court Assistant : Carlton  Toroitich

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU