[2017] KEELC 1839 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MILIMANI

ELC NO. 1100 OF 2016

FELISTA NJERI …………………………………………………...1ST PLAINTIFF

NELIUS WANGUI………………………………………………….2ND PLAINTIFF

JANE GACU………………………………………………………..3RD PLAINTIFF

-VERSUS-

PATRICK KANIARU IGIRIA ………………………………...……1ST DEFENDANT

JAMES MACHARIA MBUTTI……………………………...……2ND DEFENDANT

MOSES KAMAU MBUTTI………………………………….....…3RD DEFENDANT

RULING

1. The applicants are sisters to the first Respondent. They are all children of the late Peter Njenga Igiria alias Mutunga Igiria (deceased) who was the registered owner of LR No. Dagoretti/Riruta/199 which was later subdivided and resulted in Dagoretti/Riruta/4655 and 4656. Dagoretti/Riruta/4655 was registered in the name of the deceased. Upon the demise of the deceased, Dagoretti/Riruta/4655 was registered in the name of the first Respondent through transmission as the first Respondent had become the administrator of the estate of the deceased.

2. The first Respondent then subdivided LR No.Dagoretti/Riruta/4655 into six parcels four of which are registered and two others are unregistered. The registered portions are Dagoretti/Ruruta/5443 to 5446. The father of the second and third Respondents had purchased a portion from the deceased. Parcel No. Dagoretti/Riruta/5443 was transferred to the family of the second and third Respondents. The title to that property is now in the names of Mary Waithera Mbuti, David Kuria Mbuti and the third Respondent.

3. The applicants have brought a Notice of Motion dated 7th September 2016, in which they seek injunctive orders restraining the Respondents from interfering with LR Nos.Dagoretti/Riruta/5443-5446. Though the injunction orders are directed at the four portions aforementioned, the target seems to be LR Dagoretti/Riruta/5443. This is the property which is in the name of the family of the second and third Respondents. The applicants contend that the first applicant has constructed on LR No.Dagoretti/Riruta/5443 and that the second and third Respondents have demolished her structures built on that portion.

4. It is clear that the applicants brought this application and did not disclose material facts. They did not disclose that the portion which is in contention was a subject of a long standing dispute between the deceased and the father of the second and third Respondents who had purchased a portion of the deceased’s land. The father of the second and third Respondents had even caused a caution to be registered against the deceased’s property claiming purchaser’s interest. This dispute was resolved when LR No. Dagoretti/Riruta/5443 was transferred to the family of the second and third Respondents in 2006.

5. The applicants were aware of this position. The applicants and particularly the first applicant has built structures which encroached on to the land held by the family of the second and third Respondents. A surveyor was brought and prepared a report which found that there was encroachment. The applicants were given time to move out but they did not do so. The applicants are now raising the issue of being disinherited of their father’s land. The process of succession was carried out decades ago. It is being raised now to cloud the real issues in this case.

6. This being an application for injunction, the applicants were expected to come to court with clean hands. Besides this, they were expected to demonstrate that they have a prima facie with probability of success. The second and third Respondents family are the registered owners of the disputed portion. The applicants are not fraudulent. In fact they came to court as if they did not know the interest of the second and third Respondents in that land. I do not see any case the applicants have against the second and third Respondents. If they are seeking their entitlement from their family

7. This being an application for injunction, the applicants were expected to come to court with clear hands. Besides this, they were expected to demonstrate that they have a prima facie with probability of success. The second and third Respondents family are the registered owners of the situated portion. The applicants are not claiming that the registration was fraudulent. In fact, they came to court as if they did not know the interest of the second and third Respondents in that land. I do not see any case the applicants have against the second and third Respondents. If they are seeking their entitlement from their fathers estate, they are in order but cannot do so at the expense of the family of the second and third Respondents who are already the registered owners of Dagoretti/Riruta/5443.

8. In the event that the applicants finally succeed to show that the family of the second and third Respondents were not entitled to the land, they can always be compensated in damages. The iron sheet structures which were on the disputed portion have already been demolished and the purpose of an injunction is to prevent what has not occurred. It is never given where that which it seeks to prevent has already happened. I therefore find that no injunction orders can be issued in the circumstances. The upshot of this is that I find no merit in the applicants’ application which is hereby dismissed with costs to the Respondents.

It is so ordered.

Dated, Signed and Delivered at Nairobi on this 31st day of July 2017.

E.O.OBAGA

JUDGE

In the absence of parties who were duly notified of the date and time of ruling.

Court Assistant: Hilda

E.O.OBAGA

JUDGE