[2017] KEELC 1801 (KLR)
The court found that the applicant's request for a temporary injunction was without merit because the respondents had been in occupation of the suit land since before the suit was filed in 2007, and the applicant's own pleadings acknowledged their presence and the existence of the structures. The application, filed...
Source-derived case information.
- Citation
- [2017] KEELC 1801 (KLR)
- Parties
- Plaintiff: Grace Njambi Ngugi; Defendant: Montana Kimani Mbogo; Defendant: Joseph Njenga Wachaiyu; Defendant: Hannah Wamaitha Njenga; Defendant: The Attorney General; Defendant: Commissioner of Lands; Defendant: Chief Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 523 of 2008
- Procedural Posture
- Ruling on Injunction Application / Interlocutory
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Land Ownership Disputes, Adverse Possession Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Njambi Ngugi
Plaintiff
Montana Kimani Mbogo
Defendant
Joseph Njenga Wachaiyu
Defendant
Hannah Wamaitha Njenga
Defendant
The Attorney General
Defendant
Commissioner of Lands
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Ruling on Injunction Application / Interlocutory
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from dealing with the suit property pending determination of the suit.
- 2 Whether the application for injunction is an abuse of the court process given the history of occupation and prior pleadings.
Ratio Decidendi
The court found that the applicant's request for a temporary injunction was without merit because the respondents had been in occupation of the suit land since before the suit was filed in 2007, and the applicant's own pleadings acknowledged their presence and the existence of the structures. The application, filed eight years after the suit commenced, was deemed an abuse of the court process. The court emphasized that injunctions are not granted to restrain acts that have already occurred, and the applicant should have sought such relief at the time of filing the suit if it was necessary. The respondents could not dispose of the land as it was registered in the applicant's name, and the...
Court Disposition
application dismissed
Orders
- The applicant's application for a temporary injunction is dismissed with costs to the second and third respondents.
- The case should be set down for hearing without further delay.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI
ELC NO. 523 OF 2008
GRACE NJAMBI NGUGI.............................................PLAINTIFF
=VERSUS=
MONTANA KIMANI MBOGO..........................1ST DEFENDANT
JOSEPH NJENGA WACHAIYU.....................2ND DEFENDANT
HANNAH WAMAITHA NJENGA....................3RD DEFENDANT
THE ATTORNEY GENERAL............................4TH DEFENDANT
COMMISSIONER OF LANDS........................5TH DEFENDANT
CHIEF LAND REGISTRAR.............................6TH DEFENDANT
RULING
1. The Plaintiff /Applicant filed a Notice of Motion dated 18th March 2016, in which she sought the following reliefs:-
i. Spent
ii. Spent
iii. Spent
iv. That the first, second and third Respondents, their servants, agents and all those claiming under them be restrained by an order of temporary injunction from entering ,occupying ,erecting structures thereon, transferring, disposing, wasting, carrying on any activities in or in any other way dealing with the suit property until the hearing and determination of this suit.
v. That the costs of this application be provided for.
2. The applicant is the registered owner of LR No. Dagoretti/Ruthimitu/T 249 (suitland).The applicant contends that the first, second and third Respondents invaded the suit land in February 2016, and erected structures on it. That the Respondents are operating a church which was causing noise pollution as she lives on the suit land with her husband and children.
3. The applicant’s application is opposed by the Respondent’s through a replying affidavit sworn on 25th January 2017. The Respondents contend that the applicant’s application is an abuse of the process of the Court. That the Respondents have been on the suit land since 1980. The applicant found them on the suit land when she came there and that when she filed this suit, she prayed for an order of their eviction. They therefore contend that the applicant is not being honest when she claims that they invaded the suit land in February 2016.
4. I have considered the applicant’s application as well as the opposition to the same by the Respondents. I must say at the outset that this application is an abuse of the process of the court. The applicant filed this suit on 25th July 2007. Her prayers in the Plaint were for an order of permanent injunction and eviction order against the Respondents. It is therefore ironical for the applicant to come to court eight years later and claim that the Respondents invaded the suit land, in February 2016.
5. When the present application was filed, the suit had already been fixed for hearing which was scheduled for 2nd June 2017. The case could not proceed due to the application herein which was pending for Ruling. The purpose of an injunction is to prevent that which has not occurred or to restrain further injury to a property. It is never given to restrain that which has already happened. The Respondents are not in a position to dispose of the suit land because it is registered in the name of the applicant. The Respondents are claiming that the registration of the suit land in the name of the applicant was fraudulent. The buildings which the applicant is complaining about were in place when the suit was filed and her pleading clearly attest to this. If there was need for injunction, the applicant would have filed an application for it when she filed the suit. I do not find any merit in the applicant’s application which is hereby dismissed with costs to the second and third Respondents. This case should be set down for hearing without any further delay.
It is so ordered.
Dated, Signed and Delivered at Nairobion this 31stday of July, 2017
E.O.OBAGA
JUDGE
In the Presence of :-
Mr Kiprono for M/s Chirchir for 1st,2nd & 3rd Respondents
Mr Angaya for Mr Chege for Plaintiff
Court Assistant: Hilda
E.O.OBAGA
JUDGE