Silas Kirimi Samwel v John Muriira Riungu,David Muchai Samwel, Joseph Kiogora & Susan Kendi Kirimi [2021] KEELC 139 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC NO. 33 OF 2021

SILAS KIRIMI SAMWEL ………………………...…………….. PLAINTIFF

VERSUS

JOHN MURIIRA RIUNGU …………….….……………… 1ST DEFENDANT

DAVID MUCHAI SAMWEL ……….……..…….……….. 2ND DEFENDANT

JOSEPH KIOGORA …………………….…….………….. 3RD DEFENDANT

SUSAN KENDI KIRIMI …………….……….……..……. 4TH DEFENDANT

RULING

1. By a notice of motion dated 1. 11. 2021 the applicant seeks for inhibition orders over L.N Ntima/Nkariua/700 and a temporary injunction over L.R Ntima/Nkariua/700 pending hearing and determination of this suit.  The application is supported by the applicant’s affidavit sworn on 1. 11. 2021.

2. The grounds are that the suit land is registered under the name of Silas Kirimi Ngatuni having acquired it by virtue of a decree of this court following a judgment made on 11. 8.2018 but has passed on 15. 7.2021.

3. However it is averred upon his death the property was allegedly transferred to the defendants on 26. 8.2021.

4. For a party to be entitled to temporary injunction he has to establish a prima facie case with a probability of success at the hearing.  Secondly he has to establish he is likely to suffer irreparable loss and damage which may not be compensated by way of damages and lastly that the balance of convenience tilts in favour of granting the orders. See Giella–vs-Cassman Brown[1973] EA 358.

5. In this case, the deceased was granted the suit land through a regular decree of this court and judgment to which he was registered as the owner.  How the changes were effected over the title especially so soon after his death are circumstances which shall be interrogated at the hearing.

6. The respondents though served have not opposed the orders sought.

7. The applicant has established a right to ownership which under Article 40 of the Constitution as read together with Order 40 of the Civil Procedure Rules requires protection as held in MraoLtd v.First American Bankof Kenya Ltd and 2 Others [2003] eKLR.

8. Similarly under Section 68 of Land Registration Act, the court is granted powers to issue orders for the preservation of the suit land on deserving cases such as this one where it is apparent there are issues requiring determination during the hearing.

9. The circumstances as set out in the application and the supporting affidavit in my considered view call for the preservation of the property. I allow the application in terms of prayers 3 and 4 for a period of one year.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH  DAY OF DECEMBER, 2021

In presence of:

Wambua for respondents

Karanja for applicant

Court Assistant – Kananu

HON. C.K. NZILI

ELC JUDGE