[2017] KEELC 897 (KLR)
The court found that the applicants had demonstrated a prima facie case with a probability of success, as the suit property was public land earmarked for a school and was irregularly registered in the name of the first respondent. The surrender of the title by the first respondent did not render the application...
Source-derived case information.
- Citation
- [2017] KEELC 897 (KLR)
- Parties
- Plaintiff: Ephantus Mugo; Plaintiff: Kauthar Mariam; Defendant: Dakane Abdullahi Ali; Defendant: Northern Construction Limited; Defendant: National Land Commission; Defendant: Nairobi County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 138 of 2017
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- injunction granted
- Legal Topics
- Public Land Grabbing, Injunctive Relief, Locus Standi, Title Revocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Mugo
Plaintiff
Kauthar Mariam
Plaintiff
Dakane Abdullahi Ali
Defendant
Northern Construction Limited
Defendant
National Land Commission
Defendant
Nairobi County Government
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an injunction to preserve the suit property pending determination of the suit.
- 2 Whether the applicants have locus standi to bring the application.
- 3 Whether the surrender of the title by the first respondent renders the application moot.
Ratio Decidendi
The court found that the applicants had demonstrated a prima facie case with a probability of success, as the suit property was public land earmarked for a school and was irregularly registered in the name of the first respondent. The surrender of the title by the first respondent did not render the application moot, as the purpose of an injunction is to preserve the subject matter of the suit. The continued occupation of the property by the second respondent, despite completion of the road construction, further justified the need for preservation. The court held that the applicants' application had merit and allowed it in terms of the specified prayers in the Notice of Motion.
Court Disposition
injunction granted
Orders
- Prayers two (2) and five (5) of the Notice of Motion dated 22nd February 2017 are allowed, granting an injunction to preserve the suit property.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI
LAND CASE NO. 138 OF 2017
EPHANTUS MUGO…………………………..1ST PLAINTIFF
KAUTHAR MARIAM…………………………2ND PLAINTIFF
=VERSUS=
DAKANE ABDULLAHI ALI………………...1ST DEFENDANT
NORTHERN CONSTRUCTION LIMITED…2ND DEFENDANT
NATIONAL LAND COMMISION…………...3RD DEFENDANT
NAIROBI COUNTY GOVERNMENT………..4TH DEFENDANT
RULING
1. The applicants are members of Starehe Community where Racecourse Primary School is located. LR No. 209/16441 (suit land) which is now registered in the name of the first respondent was part of the land where the school is located. The suitland had been earmarked for the school when the process of acquisition of title for the school began. However before the title could be processed, part of the school’s land was registered in the name of the first respondent.
2. The Registrar of titles revoked the title deed by the first respondent vide a Gazette Notice in the year 2010. The acquisition of the title by the first respondent to the suit property has been a subject of investigation and parties involved have been charged in the Anti-Corruption Court. The applicants are therefore seeking injunction to protect the suit property from being transferred.
3. The second respondent has opposed the applicant’s application based on grounds of opposition dated 20. 3.2017 and replying affidavit sworn on 23rd April 2017. The second respondent contends that the application by the applicants is misconceived as the second respondent is on the suit property based on its relationship with Racecourse primary School which is a tenant/landlord relationship and that that relationship is protected and the second respondent can only move out upon being given adequate notice to do so.
4. The first respondent has opposed the applicant’s application based on a replying affidavit sworn on 26th May 2017 in which he contends that the applicants application has been overtaken by events in that he has since surrendered the title to the suit land to the County Government of Nairobi and therefore there is no cause of action against him.
5. The fourth defendant has opposed the applicant’s application based on replying affidavit sworn on 4th October 2017. The fourth respondent contends that the applicant’s application is misconceived as they lack locus standi. That the issue in this case can be sorted out administratively and that Racecourse Primary School is in a better positon to give clear facts which can assist this Court.
6. I have considered the applicants application and the opposition thereto by the first and second respondent. This is one of the disturbing cases where property belonging to public institutions are grabbed with impunity. The second applicant moved its construction material to the suit property when it was constructing a road near the suit property. That road has since been completed but the second respondent is still on the property. Though I do not know the relationship between the first respondent and the second respondent, it is during the occupancy of the second respondent on the suit property that the first respondent acquired the same.
7. The first respondent has tried to hold on to the illegally acquired title despite efforts to wrest it from him. It would appear that he surrendered the title after being charged in court. There have been other proceedings touching on the same suit property at least from the record in this file. The purpose of an injunction is to preserve the subject matter of the suit. The applicants have demonstrated that they have a prima facie case with probability of success. The fact that the first applicant has surrendered the title does not mean that an injunction should not be given to preserve the property. I therefore find that the applicant’s application has merit. I allow it in terms of prayers two (2) and five (5) of the Notice of Motion dated 22nd February 2017.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 22ndday of November 2017.
E.O.OBAGA
JUDGE
In the absence of parties who were aware of the time and date of delivery of Ruling.
Court Assistant: Hilda
E.O.OBAGA
JUDGE