[2007] KEHC 233 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of an injunction, as there was evidence of double allocation of the suit premises by the 1st defendant and ongoing construction by the 2nd defendant. The court held that, in accordance with Section 52 of the Transfer of Property Act...
Source-derived case information.
- Citation
- [2007] KEHC 233 (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 78of 20 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- 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 Application
Legal Issues
- 1 Whether the plaintiff is the rightful owner of the suit premises Kitusuru 101/E49.
- 2 Whether an injunction should issue to restrain the defendants from interfering with the plaintiff's title or interest pending determination of the suit.
- 3 Whether the actions of the 2nd defendant in constructing on the land are lawful given the pending suit.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of an injunction, as there was evidence of double allocation of the suit premises by the 1st defendant and ongoing construction by the 2nd defendant. The court held that, in accordance with Section 52 of the Transfer of Property Act and the precedent in Mawaji v USIU, no party should transact or interfere with the suit property while the matter is pending. The court further emphasized that the proper procedure is to hear applications in the order filed, thus the plaintiff's application was considered first. Consequently, the court issued an injunction restraining the defendants from evicting, building,...
Court Disposition
Interlocutory injunction granted in favour of the plaintiff; costs awarded to the plaintiff.
Orders
- An injunction is issued against the 1st and 2nd defendants restraining them from evicting, building, alienating, wasting, or interfering with the plaintiff's title or interest in L.R. Kitisuru 101/E49 until determination of the suit.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 78of 2007
EUNICE LAMBA………………………………………....………………….………PLAINTIFF
VERSUS
NATIONAL SOCIAL SECURITY FUND
BOARD OF TRUSTEES……………………..…………………………….1ST DEFENDANT
FLORENCEMAINA………………..………………………………………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