Jared Ojiambo Ogutu v Washington Wanyama [2014] KEHC 2521 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 37 OF 2014.

JARED  OJIAMBO OGUTU :::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

=VERSUS=

WASHINGTON  WANYAMA ::::::::::::::::::::::::::::::::::::::::::DEFENDANT.

R U L I N G.

JARED OJIAMABO OGUTU, hereinafter referred to as the Applicant, filed the notice of motion  under certificate of urgency  dated 27th February, 2014 for orders of temporary injunction restraining  Washington Wanyama,  hereinafter referred to as the Respondent, and those claiming under him for ‘’disposing, utilizing and or alienating’’ Land parcel Samia/Wakhungu Odiado/99 and costs. The  application  is based on the three grounds  on the face of  the application and the supporting and supplementary  affidavits of  Jared Ojiambo  Ogutu  sworn on 27th February, 2014  and 13th March, 2014 respectively.

The application is opposed by the Respondent through replying affidavit sworn by Washington Wanyama on 3rd March, 2014.

During  the hearing, the  Applicant  made his submissions stating that  he relied on the grounds and the supporting affidavit.  He said he resides on the suit land while Respondent resides on Samia/Wakhungu Odiado/121. The Respondent’s counsel, Mr.  Onsongo, submitted that the application  is not based on the main suit which is  for cancellation of the title on the basis that Respondent got registered  with the land through fraud. Counsel  submitted that the Respondent  got registered with the suit land on first registration and his title is indefeasible in law  even on the basis of fraud. He therefore submitted that the Applicant has not established that he has a case with  high chance of succeeding and therefore the orders should not issue.  The counsel submitted that the Applicant has already lodged a caution over the suit land with the Land Registrar and that even though no interim  orders were issued by the court, the Respondent has not taken any steps to sell the suit land as alleged. The counsel further submitted that by the time this suit and the application were filed, the Applicant had no legal capacity to file these proceedings as the limited grant annexed to the supplementary affidavit was obtained on 11th March, 2014.

Having heard the Applicant and Mr. Onsongo advocate for the Respondent, and having considered the supporting, replying and  supplementary affidavits  filed herein, the  court finds as follows:

That land parcel Samia/Wakhungu Odiado/99 was registered in the names of Washington Wanyama on 11th November, 1972. That the said registration was a first registration.

That Simon Ogutu  Keke , who is said to be the father to the parties, died on 30th May, 1995 and there is nothing  to show he had taken any steps to challenge the registration of Washington Wanyama as the proprietor  of Samia/Wakhungu Odiado/99.

That the provision of section 26(1) of the Land Registration Act requires that the one registered with the title of the suit land, be taken as the absolute and indefeasible owner of the same unless and until the contrary is shown.  At this juncture, the Applicant  has not availed any evidence to the contrary to restrict the Respondent’s  rights conferred by registration.

That the Applicant obtained the limited grant attached to the supplementary affidavit on 11th March, 2014 while the application dated 27th February, 2013 was filed on 27tg February, 2014. The Applicant did not have the legal capacity to file and prosecute any proceedings for the benefit of his father’s estate by the time these proceedings  and application was filed.   There is however nothing to confirm that these proceedings are for the benefits of the Applicant’s father’s estate.

That  for reasons  set out above, the Applicant  has failed to satisfy the grounds set out  in Giela –vs- Cassman Brown  that  are precedent to the issuance  of the orders sought.

The Applicant’s application is without merit and is dismissed with costs.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 15th DAY OF OCTOBER, 2014.

IN THE PRESENCE OF; Both parties and Mr. Onsongo  for Defendant/Respondent.

JUDGE.