Lawarence Isongoli Karani v Geofrey N. Omoding [2014] KEHC 3107 (KLR)

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 68 OF 2014.

LAWARENCE ISONGOLI KARANI……………………PLAINTIFF

VERSUS

GEOFREY N. OMODING………………………………..DEFENDANT.

R U L I N G.

LAWRENCE  ISOGOLI KARANI hereinafter  referred  to as the Applicant  through M/S. Obwoge Onsongo  & company advocates filed the notice of Motion dated 1st April, 2014  for  a temporary  injunction against Geofrey N.  Omoding, hereinafter  referred to as the Respondent  over land  parcel south Teso/Amukura/2570  pending the hearing and determination of this suit.

The application is based on five grounds on the face of the application, the supporting and further  supporting affidavits  by Lawrence Isogoli  Karani sworn on 1st April, 2014 and 19th May, 2014 respectively.

The Respondent  opposed the application through the grounds of opposition dated 7th April, 2014  and replying affidavit  of Geofrey N. Omoding  sworn on 5th May, 2014 filed through  M/S Ashioya & company advocates.

During  the hearing, Mr. Onsongo and Mr. Ashioya  appeared for the Applicant and Respondent and submitted on behalf  of their respective clients.  I have  carefully considered the grounds on the face of the application, the contents of the grounds of oppositions, submissions  by both  counsel, supporting, further supporting and replying affidavits and find as follows;-

That the Applicant is the registered  proprietor of the suit land South Teso/Amukura/2570 having been so registered on 18th November, 1993 and title deed issued on the same date.

That the  said suit land has an acreage of 1. 20 hectares as indicated in the copy  of the title  deed annexed to the supporting affidavit.

That the Respondent’s  interest is not on the suit land but on South Teso/Amukura/2569 belonging  to Rophinah Imo Amai under  a land sale agreement  dated 26th May, 2003, a copy of which is attached to the replying affidavit.

That though the Respondent  has availed two letters dated  15th June, 1994 and 10th February, 2014 that show the Land Registrars office has been dealing with  a complaint  relating to the size of the land the Applicant was to get under the suit land, there is  nothing to show that the Applicant’s title  to the 1. 20 hectares  has been cancelled, revoked or reduced to a smaller portion.

That  the certificate  of title is held as conclusive  evidence  of proprietorship as provided for under Section 26 of the Land Registration Act which states:

‘’26.    (1)  The certificate of title  issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the  proprietor  shall be taken by all courts as prima  facie evidence that the person named  as  proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and  conditions contained or endorsed in the    certificate, and the title  of that proprietor  shall   not be subject to challenge, except-

(a)     on the ground of fraud or                                                            misrepresentation to which the person is                               proved to be a party’ or

(b)     whether the certificate of title has been                                  acquired illegally. Unprocedurally or through  a corrupt scheme.’’

The factors contained in (a) and (b)  can only be established  through tendering of evidence  and there is no such evidence tendered so far.  In any case the party to challenge  the Applicant’s title to  the 1. 20 hectare land comprising of South Teso/Amukura/2570 from the available material  may logically be the Land Registrar who issued the  title or the person from whom the Applicant acquired the Land from or such persons legal representative.

5.      That from the fodregoing, and considering one of the  Applicant’s  prayer in the plaint dated 1st April,  2014 is for a   permanent injunction, I find  the Applicant   has satisfied the court that on the materials so far presented  he has a prima   facie case with a high chance of success as against the  Respondent  in terms of the principles set out in the celebrated    case of Giella –vs- Casman Brown.

That having  found as above, I find  the Applicant’s application dated 1st April, 2014 has merit and is granted in the following  terms:

That an order of temporary  injunction is hereby issued restraining the Respondent and  all those claiming under him from trespassing, tilling, weeding and or in any other manner using land parcel South Teso/Amukura/2570 to which the Applicant is the registered proprietor  pending the hearing and final determination of this suit.

That the  costs will abide the outcome  of the main suit.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

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

IN THE PRESENCE OF;

Mr. Ashioya  for Defendant, Respondent  only.