[2007] KEHC 3610 (KLR)
The court found that there was a prima facie case of double allocation of the suit property by the 1st defendant. Given the competing claims and the fact that the 2nd defendant had begun construction on the land, the court held that the plaintiff had established sufficient grounds for the grant of an interlocutory...
Source-derived case information.
- Citation
- [2007] KEHC 3610 (KLR)
- Parties
- Plaintiff: Eunice Lamba; Defendant: National Social Security Fund Board of Trustees; Defendant: Florence Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 78 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction granted in favour of the plaintiff; costs awarded to the plaintiff.
- Legal Topics
- Double Allocation, Injunctive Relief, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Lamba
Plaintiff
National Social Security Fund Board of Trustees
Defendant
Florence Maina
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is the rightful owner of LR Kitisuru 101/E49 given the double allocation by the 1st defendant.
- 2 Whether an injunction should issue to restrain the defendants from interfering with the suit property pending determination of the suit.
Ratio Decidendi
The court found that there was a prima facie case of double allocation of the suit property by the 1st defendant. Given the competing claims and the fact that the 2nd defendant had begun construction on the land, the court held that the plaintiff had established sufficient grounds for the grant of an interlocutory injunction. The court relied on the principle that once a suit is filed, Section 52 of the Transfer of Property Act prohibits any transaction or transfer of the suit property until the matter is resolved. The court therefore issued an injunction restraining both defendants from evicting, building, alienating, wasting, or interfering with the plaintiff's title or interest in LR...
Court Disposition
Interlocutory injunction granted in favour of the plaintiff; costs awarded to the plaintiff.
Orders
- An injunction is hereby issued against the 1st and 2nd defendants restraining them from evicting, building, alienating, wasting, or interfering with the plaintiff's title or interest in LR Kitisuru 101/E49 until determination of the suit.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 78 of 2007
1. Land & Environmental Law Division
2. Application of Main Suit ownership of Land
Double allocation
3. Application 25 January, 2007
For an injunction to restrain defendant from interfering with suit property
LR Kitsuru 101/E49
4. Arguments by plaintiff
1. Was first allocated land
5. Arguments by the Defendant No. 2
1. That the Defendant has taken possession and has a right.
2. Has in fact filed application for injunction of 2. 2.2007
6. Arguments by Defendant No.1
1. Plaintiff has no locus
7. Findings
i) Case of double allocation
ii) Injunction to issue.
8. Case Law Mawaji v USIU 19 KLR
9. Advocates
Migos Ogamba & Co. Advocates for the plaintiff/applicant - present
Kajwang & Kanjwang & Co. Advocates for the 1st defendant-present
Waruhiu Gathuru & Co. Advocates for the 2nd defendant- present
EUNICE LAMBA………………..........................................…...…………………PLAINTIFF
VERSUS
NATIONAL SOCIAL SECURITY FUND BOARD OF TRUSTEES....1ST DEFENDANT
FLORENCE MAINA..................................……………………….………2ND DEFENDANT
RULING
1. Background of Application of 25 January 2007
By Plaintiff/Applicant for an Injunction:
1. The Plaintiff herein Eunice Lamba alleges that she was allocated the suit premises being Kitusuru 101/E49 by the 1st Defendant herein National Social Security Fund Board of Trustees.
2. She was therefore perturbed when she found Florence Maina on the suit land having taken possession of the same.
3. The Plaintiff filed this suit on land for the possession of the said property. She also filed an application for an injunction. The defendant filed an application of January 2007 also for an injunction.
II. Application of 25 January, 2007
3. The Plaintiffs/Applicant case is that she was allocated the suit land. She was therefore the rightful owner herein.
4. The Defendant No. 1
The Defendant No.2 filed her own application for an injunction this court ruled that accordingly to procedure the court should always hear the application of cases in the order they had been filed. The earlier order herein was that the plaintiff application is heard first.
6. The question arises herein is who is the rightful owner of the suit premises. It is indeed very clear that the 1st defendant gave a double allocation. This is a cautious issue to be determined between the parties, namely who then now is the rightful owner.
7. The 2nd Defendant has begun constructing. She does so at her own peril. In the case law Mawaji v USIU 19 KLR the court held that once a court suit has been filed Section 52 of the transfer of property that does not permit any transaction of the suit premises and or transfer.
I: Findings
8. I hereby hold that there is prima facie case herein that an injunction do hereby issue against the 1st and 2nd Defendant from evicting building, alienating or wasting and/or interfering with the plaintiff title and/or interest on the land L.R. Kitisuru101/E49 until the determination of this suit.
9. I award costs to the Plaintiff.
Dated this 24th day of May, 2007 at Nairobi.
M.A. Ang’awa
JUDGE
24. 5.2007
Advocates:
Migos Ogamba & Co. Advocates for the plaintiff/applicant - present
Kajwang & Kanjwang & Co. Advocates for the 1st defendant-present
Waruhiu Gathuru & Co. Advocates for the 2nd defendant- present