[2018] KEELC 1676 (KLR)
The court found that the plaintiff failed to demonstrate a prima facie case as required for the grant of an injunction. The deceased, through whom the plaintiff claims, did not prove any contribution to the acquisition of the suit property before the panel of elders in 1987, nor did the family provide evidence of...
Source-derived case information.
- Citation
- [2018] KEELC 1676 (KLR)
- Parties
- Plaintiff: Dorothy Wamunyu Muchiri; Defendant: Barthlomew Joseph Waweru Titi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 182 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Applications
- Outcome
- Plaintiff's application dismissed with costs; defendant's application allowed in terms of prayer (c) and (d); file transferred to Thika ELC Court.
- Legal Topics
- Injunctive Relief, Ownership Dispute, Title Registration, Family Land Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorothy Wamunyu Muchiri
Plaintiff
Barthlomew Joseph Waweru Titi
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant grant of an injunction against the defendant regarding LR No.4953/43/II.
- 2 Whether the defendant is entitled to restraining orders against the plaintiff and her children from collecting rent and interfering with management of the suit property.
Ratio Decidendi
The court found that the plaintiff failed to demonstrate a prima facie case as required for the grant of an injunction. The deceased, through whom the plaintiff claims, did not prove any contribution to the acquisition of the suit property before the panel of elders in 1987, nor did the family provide evidence of such contribution in subsequent proceedings. The local assistant chief's arbitration in 2015 did not confer legal title or override the registered ownership of the defendant. Consequently, the plaintiff's application for injunctive relief was dismissed. The defendant's application was unopposed, and the court found that the plaintiff's son had forcefully entered the property and...
Court Disposition
Plaintiff's application dismissed with costs; defendant's application allowed in terms of prayer (c) and (d); file transferred to Thika ELC Court.
Orders
- Plaintiff's application for injunction is dismissed with costs to the defendant.
- Defendant's application is allowed in terms of prayer (c) and (d), restraining the plaintiff and her children from collecting rent from the suit property and from interfering with the defendant's management of the suit property.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO.182 OF 2016
DOROTHY WAMUNYU MUCHIRI.........................PLAINTIFF
=VERSUS=
BARTHLOMEW JOSEPH WAWERU TITI..........DEFENDANT
RULING
1. This is a Ruling in respect of two applications. The first application is dated 29th February 2016, brought by the plaintiff. It seeks injunctive orders against the defendant in respect of LR No.4953/43/II in Thika Town (suit property). The second application is dated 3rd July 2017 brought by the defendant. It seeks orders restraining the plaintiff and her children from collecting rent from the suit property as well as restraining the plaintiff and her children from interfering with the defendant’s management of the suit property.
2. The suit property is registered in the name of the defendant who is a brother in-law of the plaintiff. The plaintiff had moved to court and filed a suit against the defendant seeking certain declaratory orders which are based on some arbitration by a local assistant chief who ruled that the suit property should be given to the family of the plaintiff who is the wife of the defendant’s deceased brother.
3. The parties herein had been directed to file written submissions in respect of the first application. The parties complied with the directions. Before a ruling could be delivered in respect of the first application, the defendant filed the second application. The plaintiff did not file a replying affidavit to the second application. When this matter came before me for directions on 27th July 2018, I granted leave to the respondent to file a replying affidavit and directed that parties file their written submissions within 14 days . As at the time of writing this ruling, neither the plaintiff nor the defendant had filed their submissions. The plaintiff had also not filed a replying affidavit as directed.
4. I have considered the first application as well as the opposition thereto by the defendant. I have also considered the submissions by the parties. The suit property has been a subject of dispute between the defendant and his brother who is now deceased. In 1987 the suit property was one of those being claimed by the deceased. The panel of elders declined to make any findings regarding the same and advised the deceased to file a suit before a competent court to prove his claim to it.
5. The deceased did not file suit as advised and neither did the family do so. Instead the family pursued the matter several years later before the local assistant chief who in November 2015 ruled that the deceased’s family was entitled to the entire suit property. This is the verdict which made the plaintiff’s son to forcefully move into the suit property after which this suit was filed.
6. The principles for grant of injunction are well settled. One of the principles for grant of an injunction is that the applicant must demonstrate that he/she has a prima facie case. In the instant case , it is clear that the plaintiff has not demonstrated that she has a prima facie case. As far as 1987 the plaintiff’s deceased husband did not demonstrate to the panel of elders that he had documents to show that he contributed to the purchase of the suit property. Several years later, the deceased’s family cannot demonstrate prima facie that the deceased contributed to the acquisition of the suit property. I therefore find no merit in the application by the plaintiff which is hereby dismissed with costs to the defendant.
7. As regards the second application by the defendant, the same is unopposed. The plaintiff’s counsel had claimed that he did not file a replying affidavit due to an oversight. The counsel was given 14 days to do so which he did not do. It is clear that the plaintiff’s son entered the suit property by force and started collecting rent. I allow the defendant’s application in terms of prayer (c), and (d). In summary thereof, the plaintiff’s application is dismissed with costs whereas the defendant’s application is allowed in terms of prayer (c) and (d). As this case relates to a property which is located within Thika Municipality within the jurisdiction of Thika ELC Court, I make an order transferring this file to Thika ELC Court for hearing and disposal. It is so ordered.
Dated, Signed and delivered at Nairobi on this 19thday of September 2018.
E.O.OBAGA
JUDGE
In the presence of;-
Mr Sausi for M/s Waithera for defendant
Court Assistant: Hilda
E.O.OBAGA
JUDGE