[2021] KEELC 325 (KLR)
The court found that the plaintiffs had already been declared the lawful owners of the suit properties by a prior judgment. The defendants, particularly the 1st defendant, had not opposed the application or controverted the plaintiffs' evidence. The court held that the plaintiffs were entitled to the reliefs sought,...
Source-derived case information.
- Citation
- [2021] KEELC 325 (KLR)
- Parties
- Plaintiff: Francis Thuku Gakomo; Plaintiff: Stephenson Karugi Kago; Defendant: Joseph Gitau Njoki; Defendant: Pauline Njoki Igogo; Defendant: Hannah Njambi Ndiro; Defendant: Robert Wangendo Ndiro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application for Permanent Injunction and Eviction Orders
- Outcome
- application allowed in its entirety
- Judges
- LC Komingoi
- Legal Topics
- Eviction Orders, Permanent Injunction, Mesne Profits, Trespass, Vacant Possession, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Thuku Gakomo
Plaintiff
Stephenson Karugi Kago
Plaintiff
Joseph Gitau Njoki
Defendant
Pauline Njoki Igogo
Defendant
Hannah Njambi Ndiro
Defendant
Robert Wangendo Ndiro
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Permanent Injunction and Eviction Orders
Legal Issues
- 1 Whether the plaintiffs are entitled to a permanent injunction restraining the 1st defendant from interfering with their land.
- 2 Whether the plaintiffs are entitled to eviction orders against the 1st defendant for trespass.
- 3 Whether the plaintiffs are entitled to mesne profits or rental income from the 1st defendant's occupation of the land.
Ratio Decidendi
The court found that the plaintiffs had already been declared the lawful owners of the suit properties by a prior judgment. The defendants, particularly the 1st defendant, had not opposed the application or controverted the plaintiffs' evidence. The court held that the plaintiffs were entitled to the reliefs sought, including a permanent injunction restraining the 1st defendant from interfering with the properties, eviction orders, removal of structures, police assistance for enforcement, and an award of mesne profits or rental income for the period of unlawful occupation. The court emphasized that lawful ownership entitles the plaintiffs to exclusive possession and protection from...
Court Disposition
application allowed in its entirety
Orders
- A permanent injunction is issued restraining the 1st defendant from entering, interfering with, or trespassing on parcels Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075.
- Eviction orders are issued against the 1st defendant to deliver vacant possession of Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075 to the plaintiffs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO.152 OF 2012
FRANCIS THUKU GAKOMO....................................1ST PLAINTIFF/APPLICANT
STEPHENSON KARUGI KAGO...............................2ND PLAINTIFF/APPLICANT
VERSUS
JOSEPH GITAU NJOKI......................................1ST DEFENDANT/RESPONDENT
PAULINE NJOKI IGOGO................................2ND DEFENDANT/RESPONDENT
HANNAH NJAMBI NDIRO...............................3RD DEFENDANT/RESPONDENT
ROBERT WANGENDO NDIRO......................4TH DEFENDANT/RESPONDENT
RULING
1. This is the Notice of Motion dated 11th January 2021 brought under section 152 E of the Land Act, 2012, ELC Act Section 13(1) and (2), Section 1, 3 and 63, order 21, 22, 26, 38, 40, 48 order 51 of the Civil Procedure Rules and the Civil Procedure Act and all enabling provisions of the law.
2. It seeks orders:-
1. Spent.
2. That this honourable court be pleased to issue a permanent injunctive order restraining the 1st Defendant herein Joseph Gitau Njoki by himself, servants, employees, agents or any other persons acting under their instructions or their interests from entering, interfering with the Applicant’s entry, occupation and possession, otherwise dealing, entering, remaining, trespassing or in any other manner interfering with all that parcel of land known as Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075.
3. That this Court do issue eviction orders against the 1st Defendant herein Joseph Gitau Njoki being that he is trespassing on the Applicant’s land all that parcel of land known as Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075 and to deliver vacant possession to the Applicant.
4. That the Defendant be restrained from interfering with the Plaintiff’s use of land and that parcel of land known as Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075 or any other of the Plaintiff’s properties.
5. That in the alternative to prayer (1) above the plaintiff do cause the removal of all the structures on the suit premises constructed by the 1st Defendant and the costs of the removal and eviction be borne by the 1st Defendant herein.
6. That this honourable court be pleased to direct the Officer Commanding Rweno Police Post to provide security to the Applicants while evicting the Respondents and/or any other trespasser(s) from the Applicant’s parcel of land known as Kiambaa/Ruaka/611 and Kiambaa/Ruaka/1075.
7. That the 1st Defendant be ordered to pay and or deposit a sum of Kshs.100,000/- in this honourable court from the date of Judgement in this matter as the loss and mesne profits and or rental income collectable for the area occupied by the 1st Defendant and for the financial loss that the Plaintiffs’ are suffering owing to 1st Defendant continued illegal commercial use and occupation of their parcel of land.
8. That this honourable court do issue any other relief they deem fit to grant in the interest of justice.
9. That the costs of the suit and this application be borne by the Defendant/Respondent.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 4.
4. The application is supported by the affidavit of Francis Thuku Gakumo, the 1st Plaintiff/Applicant herein, sworn on the 11th January 2021.
5. The Application is not opposed.
6. This court stayed the proceedings in this matter pending the hearing and determination of HCCC No 1995 of 98.
7. This court on 11th June 2020 delivered a Judgment declaring the Plaintiffs as legal and/lawful owners of the suit property.
8. The facts as presented by the Plaintiff’s case has not been controverted. I find merit in this application and the same is allowed in its entirely.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 2ND DAY OF DECEMBER 2021.
……………………….
L. KOMINGOI
JUDGE
IN THE PRESENCE OF:-
MR. KARIU THE PLAINTIFFS
NO APPEARANCE FOR THE DEFENDANTS
STEVE - COURT ASSISTANT