[2019] KEELC 4681 (KLR)
The Plaintiffs failed to establish a prima facie case with a probability of success because they did not annex the sale agreement or title documents relating to the suit properties. The Plaintiffs also failed to clarify the specific transactions between themselves and the Defendants or whether the land had been...
Source-derived case information.
- Citation
- [2019] KEELC 4681 (KLR)
- Parties
- Plaintiff: Benson Kyalo Mutula; Plaintiff: Mwangangi Mutula; Defendant: Postal and Telecommunications Employees Housing Co-operative Society Ltd; Defendant: Charles Mwangi Muchiri; Defendant: Alex Isoe Moseti (Being Trustee of P & T Housing Co-operative Society Ltd)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 47 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Interlocutory Injunctions, Land Sale Disputes, Title Cancellation, Laches
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Kyalo Mutula
Plaintiff
Mwangangi Mutula
Plaintiff
Postal and Telecommunications Employees Housing Co-operative Society Ltd
Defendant
Charles Mwangi Muchiri
Defendant
Alex Isoe Moseti (Being Trustee of P & T Housing Co-operative Society Ltd)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiffs have established a prima facie case with a probability of success to warrant the grant of a temporary injunction.
- 2 Whether the Plaintiffs will suffer irreparable harm if the injunction is not granted.
- 3 Whether the Plaintiffs are guilty of laches in bringing the application.
Ratio Decidendi
The Plaintiffs failed to establish a prima facie case with a probability of success because they did not annex the sale agreement or title documents relating to the suit properties. The Plaintiffs also failed to clarify the specific transactions between themselves and the Defendants or whether the land had been transferred. The court found that the Defendants were in occupation of the land and that the Plaintiffs would not suffer irreparable harm if the injunction was not granted. Furthermore, the Plaintiffs were guilty of laches, having delayed in bringing the application and failing to prosecute the suit expeditiously since 2014. Consequently, the application for a temporary injunction...
Court Disposition
application dismissed with costs
Orders
- The Application dated 23rd January, 2018 is dismissed with costs to the Defendants.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 47 OF 2017
BENSON KYALO MUTULA
MWANGANGI MUTULA......................................................................PLAINTIFFS
VERSUS
POSTAL AND TELECOMMUNICATIONS EMPLOYEES.....1ST DEFENDANT
HOUSING CO-OPERATIVE SOCIETY LTD............................2ND DEFENDANT
CHARLES MWANGI MUCHIRI..................................................3RD DEFENDANT
ALEX ISOE MOSETI (Being Trustees
of P & T Housing Co-operative Society Ltd)......................................4TH DEFENDANT
RULING
1. In the Application dated 23rd January, 2018, the Plaintiffs are seeking for the following orders:
a. That the Defendants and/or their agents, servants be temporarily restrained from constructing, alienating and/or transferring to other parties L.R. Mavoko Town Block 2/63 and Mavoko Town Block 2/170 pending the hearing and determination of this case.
b. That costs be provide for.
2. The Application is premised on the grounds that the Defendants are in the process of alienating the suit properties and that unless the Application is allowed, the entire suit will be rendered nugatory.
3. The Respondents filed Grounds of Opposition in which they averred that the Application is incompetent; that the Application has been filed by an advocate who is not properly on record and that the Application is an abuse of the process of the Court.
4. The Plaintiffs’ advocate filed his submissions in which he submitted that during the pendency of these proceedings, the Respondents deliberately chose to unlawfully and illegally assemble building materials on the suit land; that the Respondents have not controverted the depositions in the Plaintiff’s Affidavit and that the Plaintiff has established a prima facie case with chances of success.
5. This suit was filed by the Plaintiffs in the High Court in the year 2014. In the Plaint, the Plaintiff is seeking for a declaration that the sale transactions in respect of Mavoko Town Block 2/63 and 170 was null and void for want of the consent of the Land Control Board; cancellation of the Titles that were issued in respect of the two parcels of land and in the alternative, for the Defendants to pay the balance of the outstanding purchase together with interest.
6. The record shows that the Defendants entered appearance in the matter on 27th June, 2014. The 2nd, 3rd and 4th Defendants filed their joint Defence on 24th June, 2014.
7. Although the Defence was filed in this matter on 24th June, 2014, this matter proceeded as undefended on 14th October, 2014. However, the Plaintiffs never closed their case. The Plaintiffs have never fixed the matter for hearing since then.
8. It is not clear from the Plaintiff’s Affidavit if the suit land has since been transferred to the Defendants or not. It is also not clear to this Court the specific transaction that transpired between the Plaintiffs and the Defendant.
9. The Plaintiffs having failed to annex the Sale Agreement that they entered into with the Defendants and the copies of the title documents or extracts of the registers for the two parcels of land, I find and hold that they have not established a prima facie case with chances of success. Indeed, the reading of the Plaint supports the position that it is the Defendants who are in occupation of the suit land. The Plaintiffs will not suffer any irreparable damage if the injunctive orders are not granted.
10. In any event, the Plaintiffs are guilty of laches for having not filed the current application in the year 2014, or even attempted to prosecute the suit expeditiously.
11. For these reasons, I dismiss the Application dated 23rd January, 2018 with costs.
DATED, DELIVEREDANDSIGNEDATMACHAKOSTHIS25TH DAY OFJANUARY, 2019.
O.A. ANGOTE
JUDGE