[2017] KEELC 428 (KLR)
The court found that the Plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction, as the issue of ownership of the suit property had already been conclusively determined in previous litigation (Nairobi CMCC No. 4202 of 2004), where judgment was entered in favour of the 1st...
Source-derived case information.
- Citation
- [2017] KEELC 428 (KLR)
- Parties
- Plaintiff: David Stephen Kamiri Mbiriri; Defendant: Washington Njogu Kariuki; Defendant: Muniu Kuria; Defendant: Embakasi Ranching Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 527 of 2017
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Injunctive Relief, Res Judicata, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Stephen Kamiri Mbiriri
Plaintiff
Washington Njogu Kariuki
Defendant
Muniu Kuria
Defendant
Embakasi Ranching Company Limited
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction restraining the Defendants from interfering with the suit property.
- 2 Whether the suit is barred by the doctrine of res judicata due to previous litigation over the same subject matter.
Ratio Decidendi
The court found that the Plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction, as the issue of ownership of the suit property had already been conclusively determined in previous litigation (Nairobi CMCC No. 4202 of 2004), where judgment was entered in favour of the 1st Defendant. The Plaintiff's application to set aside that judgment was dismissed, and the matter was held to be res judicata. The Plaintiff did not controvert the 1st Defendant's assertion of res judicata, and the court was satisfied that the current suit was an attempt to re-litigate issues already settled. Consequently, the application for injunction was dismissed with costs to the...
Court Disposition
application dismissed
Orders
- The application dated 24/7/2017 is dismissed with costs to the 1st Defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 527 OF 2017
DAVID STEPHEN KAMIRI MBIRIRI................................PLAINTIFF
VERSUS
WASHINGTON NJOGU KARIUKI.........................1ST DEFENDANT
MUNIU KURIA........................................................2ND DEFENDANT
EMBAKASI RANCHING COMPANY LIMITED....3RD DEFENDANT
RULING
The Plaintiff filed the application dated 24/7/2017 seeking an order to restrain the Defendants from dealing or interfering with the Plaintiff’s plot numbers N-235 and N-235B which were excised from L. R No. 10904/2 (“the suit property”) pending hearing and determination of this suit. The Plaintiff seeks to have the order enforced by the Officer Commanding Embakasi Police Station.
The application is based on the grounds that the Plaintiff owns the suit property which the Defendants have unlawfully trespassed onto and threatened to evict the Plaintiff. The application is supported by the Plaintiff’s affidavit. He states that he bought the suit property from Muniu Kuria and that he has had quiet and peaceful enjoyment and possession of the suit property until the 1st Defendant entered the suit property claiming to have purchased it from the 3rd Defendant. The Plaintiff annexed a copy of the sale agreement together with the share certificate issued by the 3rd Defendant. He also annexed photographs of the suit property which are unclear.
The 1st Defendant filed a replying affidavit in opposition to the application for injunction. He also gave notice that he intended to raise a preliminary objection that the suit is res judicata the subject matter having been litigated and a decree issued in Nairobi CMCC No. 4202 of 2004. The 1st Defendant claims that Plot No. N235 and N235B were described as P1935 and P1936 in the suit mentioned above. The Plaintiff claims that judgement was entered in favour of the 1st Defendant on 17/10/2007. The Plaintiff’s application seeking to set aside Judgement was dismissed by the court on 21/7/2011. The Defendant avers that the court made a finding on 30/11/2011 that the suit was res judicata. The 1st Defendant contends that Plot Numbers N235 and N235B are the same as P1935 and P1936 which he owns.
The court is not satisfied that the Plaintiff has a prima facie case against the Defendant.
The court has looked at the Judgement of Judge Mbogholi given on 6th April, 2017 in which the court dismissed the appeal brought against the decision of the lower court; which had dismissed the Plaintiff’s case on the basis that it was res judicata. The 1st Defendant’s assertion that the suit is res judicatawas not controverted by the Plaintiff.
The court agrees with the 1st Defendant that this suit ought to be dismissed for being res judicata. The application dated 24/7/2017 is dismissed with costs to the 1st Defendant.
Dated and delivered at Nairobi this 22nd day of December 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Chengecha for the Plaintiff
No appearance for the Defendant
Mr. V. Owuor- Court Assistant