[2013] KEHC 2935 (KLR)
The court found that the applicant had demonstrated ownership of the suit property through a share certificate and that the respondent failed to provide any documentary evidence to support his claim of tenancy or the alleged landlord's ownership. The applicant established a prima facie case with a high probability...
Source-derived case information.
- Citation
- [2013] KEHC 2935 (KLR)
- Parties
- Plaintiff: Daniel N Ndirangu; Defendant: Simon Mwangi t/a NACANA Hardware
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 881 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- LN Gacheru
- Legal Topics
- Ownership Disputes, Eviction, Interlocutory Injunctions, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel N Ndirangu
Plaintiff
Simon Mwangi t/a NACANA Hardware
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of an interlocutory injunction and eviction order.
- 2 Whether the plaintiff will suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the orders sought.
Ratio Decidendi
The court found that the applicant had demonstrated ownership of the suit property through a share certificate and that the respondent failed to provide any documentary evidence to support his claim of tenancy or the alleged landlord's ownership. The applicant established a prima facie case with a high probability of success, and the continued occupation by the respondent denied the applicant use of the property, amounting to irreparable loss not compensable by damages. The respondent's failure to file submissions or provide evidence left the applicant's case uncontroverted. Applying the principles in Giella v Cassman Brown, the court concluded that the applicant was entitled to the...
Court Disposition
application allowed
Orders
- The 1st Defendant/Respondent, either by himself, his agents, servants, or in any manner howsoever, be evicted from all that Parcel of Land known as Plot No.1271 A.
- The 1st Defendant/Respondent be restrained from remaining on, entering into, constructing and/or interfering with the Plaintiff’s quiet possession, occupation, enjoyment, ownership, legal, contractual and equitable rights and interest on Plot No. 1271 A, or claiming interests, rights, or in any way dealing with or...
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC NO. 881 OF 2012
DANIEL N NDIRANGU.........................................PLAINTIFF
=VERSUS=
SIMON MWANGI T/A
NACANA HARDWARE.........................................DEFENDANT.
RULING:
The Applicant herein Daniel Maina Ndirangu, has brought this Notice of Motion dated 22nd November, 2012Under Section 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap 21 laws of Kenya, Order 40 Rules 1 &2, Order 51 Rule 1 of the Civil procedure Rules 2010 and all other enabling provisions of the law. The applicant has sought for orders:-
That pending the inter-parties hearing and determination of this suit, the 1st Defendant/Respondent either by himself, his agents, servants, or in any manner howsoever be evicted from all that Parcel of Land known as Plot No.1271 A, and be restrained from remaining on, entering into, constructing and/or interfering with the Plaintiff’s quiet possession, occupation enjoyment, ownership, legal contractual and equitable rights and interest on all that parcel of land known as Plot No. 1271 A and/ or claiming interests rights or in any way dealing with or trespassing unto or continuing further trespass on the plot.
Costs of the application be borne by 1st Defendant.
The application was premised on the following grounds and also supported by the affidavit of Daniel Maina Ndirangu. That under the records held by the 2nd Defendant, the Plaintiff is the proprietor of Land known as Plot No. P 1271 ‘A’ and Plot No.
P1 351’A’ and has been issued with Share Certificate No. 1097 for 2 ( two) Shares.That on or about September, 2012, the Plaintiff visited Plot No. 1271 ‘A’ when he discovered that the 1st Defendant erected and/or occupied a building in the said Plot and he operates a hardware business that the 1st Defendant has refused to move out of the Plot and 2nd Defendant has refused to evict the 1st Defendant. That Plaintiff has a prima facie case and will suffer irreparable loss if 1st Defendant is not restrained.
The 1st Defendant filed his Defence and denied all the allegations in the Plaint. He also filed his Replying Affidavit stated that he is only a Tenant and is not aware of the allegations made by the applicant. That applicant does not have any power to evict him as 1st Defendant is only a tenant of one Kibathi who is the Original Owner.
Parties agreed to canvass the Notice of Motion by way of written submissions. The applicant filed his written submissions on 25/4/2013. However the 1st Defendant failed to comply.The Court will rely on the written submissions and the pleadings by the parties herein.
From annexture DMI, there is no doubt that the applicant herein Daniel Maina Ndirangu owns Plot No. 1271 A & 1351 “A” at Witeithie Gwaka Investment Limited,as per that Share Certificate. There is also no doubt that 1st Defendant occupies Plot No. 1271 ‘ A’ as alleged by the Plaintiff.
The 1st Defendant however, contends that he is a tenant of one Kibathi who is the rightful owner of the premises.However, the 1st Defendant did not attach any document to show that he is indeed a tenant, nor did he attach the Share Certificate for the allegedKibathi his landlord.Without such proof that 1st Defendant is a Tenant, then the plaintiff evidence remains uncontroverted.
6. The Applicant has attached a Share Certificate confirming that he owns Plot 1271’A’, the suit property.Applicant has therefore demonstrated he has a prima facie case with high probability of success.
7. The 1st Respondent continues to occupy the suit property. The Applicant therefore, has been denied the use of the same, and even after persistent requests to move out, the 1st Defendant has failed to do so. The Applicant therefore, will suffer irreparable loss which cannot be compensated by an award of damages.
The Court finds that, the 1st Respondent did not file his written submissions and nor attach any documents to confirm that he is a Tenant in the said premises.
Having considered the Notice of Motion dated 22nd November, 2012 the Court finds that, the Applicant has satisfied the Court that he deserves to be granted the Orders sought.I rely on the guiding principles laid down in the case of Giella Vs Cassman Brown Ltd [1973] EA 358.
Consequently, the Court allows the Applicant’s Notice of Motion dated 22nd November, 2012 in terms of Prayer No.3 .
Costs in the Cause.
It is so ordered.
Dated, Signed and delivered this 21ST day of June, 2013.
L.N. GACHERU
JUDGE
In the Presence of:-
.................................. For the Plaintiff
......................................For the Defendant
Anne :Court Clerk
L.N. GACHERU