[2017] KEELC 931 (KLR)
The court found that both parties presented conflicting evidence regarding ownership of the suit property, with each side producing different membership registers and documentation. Given the serious conflict of facts and the inability to determine authenticity of documents at the interlocutory stage, the court held...
Source-derived case information.
- Citation
- [2017] KEELC 931 (KLR)
- Parties
- Plaintiff: Benson Ongoto Ogot; Plaintiff: Josephine Achieng Akoth; Defendant: Kanyuku Wanjau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 986 of 2015
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Status quo order granted; injunction declined.
- Judges
- EO Obaga
- Legal Topics
- Ownership Dispute, Injunctive Relief, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ongoto Ogot
Plaintiff
Josephine Achieng Akoth
Plaintiff
Kanyuku Wanjau
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case for grant of an injunction restraining the respondent from dealing with the suit property.
- 2 Whether the court should maintain the status quo pending determination of ownership in a full trial.
Ratio Decidendi
The court found that both parties presented conflicting evidence regarding ownership of the suit property, with each side producing different membership registers and documentation. Given the serious conflict of facts and the inability to determine authenticity of documents at the interlocutory stage, the court held that it is not appropriate to grant an injunction favoring either party. Instead, the proper course is to preserve the status quo until the dispute is resolved at trial, in line with established legal principles. The court therefore ordered that there be no further construction or transfer of the suit property by either party until final determination of the case.
Court Disposition
Status quo order granted; injunction declined.
Orders
- There shall be no further construction on the suit property until the dispute herein is determined.
- There shall be no transfer of the suit property by either party until the dispute is resolved in a trial.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 986 OF 2015
BENSON ONGOTO OGOT……………………….…1ST PLAINTIFF
JOSEPHINE ACHIENG AKOTH……………............2ND PLAINTIFF
=VERSUS=
KANYUKU WANJAU…......………………………........DEFENDANT
RULING
1. The applicants filed an application dated 8th October 2015, in which they seek an injunction restraining the respondent from in anyway dealing with plot No. C66 ( Mahatima Project) Kariobangi comprised in LR No. 209-10046 ( suit property). The applicants contend that they purchased the suit property from its previous owner Joshua Mungai Mweha on 26th November 2012. The applicants thereafter made payments to the Nairobi City Council and were accordingly registered as owners of the suit property in the council records pending issuance of title documents.
2. In August 2015 and September 2015, the respondent trespassed into the suit property on the grounds that he was the owner of the same. The respondent has since persisted in claiming that he is the owner of the suit property prompting the applicants to file the present application seeking injunctive reliefs.
3. The Respondent has opposed the applicant’s application through a replying affidavit sworn on 17th May 2016 and further affidavits sworn on 20th April 2017 and 26th Aril 2017 respectively. The respondent contends that he was the original allottee of the suit property. That the suit property was allotted to him on 7th October 2004 and a certificate of ownership given to him. That according to him the vendor who claims to have sold the suit property to the applicants owns a different property opposite the suit property.
4. I have gone through the applicants’ application as well as the opposition to the same by the respondent. Both the applicants and the respondent are claiming to own the suit property. The applicants base their claim on purchase from its previous owner in 2012. The respondent on the other hand is claiming the same on the basis that he is the original allottee of the same since 2004. Both claimants have annexed what they call extracts of register of members kept by Mahatima Project ( Kariobangi South River Bank) who were allocating the plots in the area. The list presented by the applicant shows that the allottee of the suit property was Joshua Mweha. The list presented by the respondent shows that he is the allottee of the suit property.
5. It is clear that one of the lists is not genuine and it is not for the court to say at this stage which of the two is not genuine. This is a matter which can be decided upon after evidence is given in a trial. The position in such cases where there are serious conflicts of facts, the proper action to be taken by the court is to order that the status quo be maintained until the matter is resolved in a trial. See Court of Appeal decision in Ougo & another Vs Otieno (1987) KLR 364 at 365 where it was held that the general principle is that where there are serious conflicts of facts, the trial Court should maintain status quo until the dispute has been decided in trial.
6. From the further affidavits filed by the respondent in April 2017, the respondent has just only put a foundation for a residential house. An order of maintenance of status quo is hereby given directing that there shall be no further construction on the suit property until the dispute herein is determined. Further there should be no transfer of the suit property by either party until the dispute is resolved in a trial. Costs of this application shall be costs in the cause.
It is so ordered.
Dated, Signed and delivered at Nairobion this 6thday of November 2017.
E. O. OBAGA
JUDGE
In the presence of;-
Mr Makori for applicant
Court Assistant: Hilda
E. O. OBAGA
JUDGE