[2022] KEELC 14472 (KLR)
The court found that it lacked jurisdiction to entertain the application for a temporary injunction because the dispute over LR Kajiado/Loodariak/20 should first be determined by the Land Registrar as required by law. The court reiterated its earlier position that the matter was prematurely before it and that only...
Source-derived case information.
- Citation
- [2022] KEELC 14472 (KLR)
- Parties
- Appellant: Peter Gituro Githinji; Appellant: Hilda Kerubo Ondari; Appellant: Joseph M. Kamau; Appellant: Wilson Kamau t/a View Hill Agency; Respondent: Unique Shelters Limited; Respondent: Land Registrar, Kajiado; Respondent: District Surveyor (Kajiado North District)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E036 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Application for Injunction
- Outcome
- application dismissed with costs to the respondent
- Judges
- MN Gicheru
- Legal Topics
- Temporary Injunctions, Jurisdiction of Land Court, Procedure for Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Gituro Githinji
Appellant
Hilda Kerubo Ondari
Appellant
Joseph M. Kamau
Appellant
Wilson Kamau t/a View Hill Agency
Appellant
Unique Shelters Limited
Respondent
Land Registrar, Kajiado
Respondent
District Surveyor (Kajiado North District)
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the court has jurisdiction to grant a temporary injunction in respect of LR Kajiado/Loodariak/20 before the Land Registrar has determined the dispute.
- 2 Whether the application meets the threshold for grant of a temporary injunction under the Civil Procedure Rules.
Ratio Decidendi
The court found that it lacked jurisdiction to entertain the application for a temporary injunction because the dispute over LR Kajiado/Loodariak/20 should first be determined by the Land Registrar as required by law. The court reiterated its earlier position that the matter was prematurely before it and that only after the Land Registrar's determination could the court be properly seized of the dispute. Additionally, the court noted that land is immovable property and any structures erected by the respondents on land not belonging to them would ultimately be demolished, thus negating the risk of irreparable harm. Consequently, the application for a temporary injunction was dismissed for...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated February 15, 2022 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
30 paragraphs
Githinji & 3 others v Unique Shelters Limited & 2 others (Environment and Land Appeal E036 of 2021) [2022] KEELC 14472 (KLR) (28 October 2022) (Ruling)
Neutral citation: [2022] KEELC 14472 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Appeal E036 of 2021
MN Gicheru, J
October 28, 2022
Between
Peter Gituro Githinji
1st Appellant
Hilda Kerubo Ondari
2nd Appellant
Joseph M. Kamau
3rd Appellant
Wilson Kamau t/a View Hill Agency
4th Appellant
and
Unique Shelters Limited
1st Respondent
Land Registrar, Kajiado
2nd Respondent
District Surveyor (Kajiado North District)
3rd Respondent
Ruling
1. This ruling is on the notice of motion dated 15/2/2022. The application which is under orders 40 and 42 rule 6(6) Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of law seeks an order of temporary injunction restraining the respondents from alienating LR Kajiado/Loodariak/20 pending the hearing and determination of this appeal.
2. The application is supported by an affidavit sworn by one Wilion Ngotho, the director of Unique Shelters, in which he deposes that the suit land is in danger of interference by the respondents who have trespassed thereon.Annexed to the affidavit are twelve photographs showing a freshly constructed fence made of wooden poles and barbed wire, freshly deposited building stones and a house.
3. The application is opposed by the respondents who filed grounds of opposition dated April 20, 2022. The grounds include the following.a.That the application is defective for having been instituted by way of chamber summons instead of by way of notice of motion.b.It offends order 50 rule 1 of theCivil Procedure Rules which provides that all applications be by way of notice of motion.c.The application does not meet the threshold for the grant of an order of injunction.d.The prayers have been couched in a manner aimed at defeating the first and second respondents’ right to be heard and accorded fair administrative action.
4. In addition to the grounds of opposition, one Peter Gituro Githinji has sworn a replying affidavit dated 20/4/2022 in which he strongly opposes the application in its entirety.
5. I have carefully considered the application in its entirety and I find that it has no merit because as I said earlier in the other ruling, this suit ought not to be before the court. It should be determined by the Land Registrar first before coming to court. This court has no jurisdiction.Secondly, land is immovable property and if the Respondents put up structures on land that does not belong to them, they will be the losers because such structures will eventually be demolished.For the above stated reasons, I dismiss the application dated February 15, 2022 with costs to the Respondent.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF OCTOBER, 2022. M.N. GICHERUJUDGE