[2007] KEHC 2082 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case for the grant of an interlocutory injunction. The plaintiffs claimed to have been in possession of the suit land for over 18 years, having purchased it from a group known as Thome Farmers No.5, and held share certificates for specific parcels....
Source-derived case information.
- Citation
- [2007] KEHC 2082 (KLR)
- Parties
- Plaintiff: Hazel Wanjiku Wamutitu; Plaintiff: T.M. Kimathi; Defendant: Joreth Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 42 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction Pending Determination of Main Suit
- Outcome
- injunction granted pending determination of the suit; costs to plaintiffs
- Legal Topics
- Adverse Possession, Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hazel Wanjiku Wamutitu
Plaintiff
T.M. Kimathi
Plaintiff
Joreth Limited
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction Pending Determination of Main Suit
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendant from evicting them from the suit land pending determination of the suit.
- 2 Whether the plaintiffs have established a prima facie case for adverse possession.
- 3 Whether the plaintiffs would suffer irreparable loss if evicted before the suit is determined.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case for the grant of an interlocutory injunction. The plaintiffs claimed to have been in possession of the suit land for over 18 years, having purchased it from a group known as Thome Farmers No.5, and held share certificates for specific parcels. Although the defendant denied knowledge of the plaintiffs and the group, the court noted that the issues raised were contentious and required full hearing. The court held that if the plaintiffs were evicted before the determination of the suit, they would suffer irreparable loss. The court therefore granted the injunction to restrain the defendant from evicting the plaintiffs...
Court Disposition
injunction granted pending determination of the suit; costs to plaintiffs
Orders
- An interlocutory injunction is hereby granted restraining the defendant from evicting the plaintiffs from the suit land pending determination of the main suit.
- Costs of the application are awarded to the plaintiffs.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 42 of 2007 (OS) (ELC)
1. Land and Environmental Law Division
2. Subject of main suit: Land ownership
Adverse Possession
3. Application dated 1 April 07
a) Orders of injunction to restrain the defendant/respondent
Company from evicting the plaintiff from land
b) Claim of being on land for 28 years
c) No title to suit
4. In reply:
a) The plaintiff is a stranger to the defendant
5. Held:
i) Issue raised are contentious
ii) Issue of title deed number differing 13330/259 for ½ an acre
iii) Injunction to issue
6. Case law
7. Advocate
S. Kingara for Kingara & Co. Advocates for the plaintiff
P.T. Kiiru & E.M. Njenga for Kimani Kamiro & Co. Advocates for the defendant
HAZEL WANJIKU WAMUTITU ……………………………..1ST PLAINTIFF
T.M. KIMATHI ………………………………………………..2ND PLAINTIFF
VERSUS
JORETH LIMITED …………………………………………….DEFENDANT
RULING NO.2
I: Background of application 1. 4.07 for an injunction
1. The plaintiff/applicant herein claims that she has been in a suit land known as LR 13330/259 for over 28 years. She alleges to have seen strangers come to the land and was later notified on enquiring that her parcel of land hand been sold.
2. She filed this main suit for Adverse Possession and also filed an application of 1 April 07 for an injunction.
II: Application 1 April 07
3. The applicant prayed this court to restrain the respondent form evicting her out of her property that she has been in possession for over 28 years.
4. The respondent filed a replying affidavit whereby they states that the company owned parcels of land amounting to 429 acres. This land LR4920/3/2 and LR4921/31 were combined together to form LR13330. There was 640 plots made out of the suit land. By Hccc 6206/92 there were trespassers of about 220 people who were evicted from the land. At no time did the defendant know or was aware of the plaintiff.
5. In reply to this the plaintiff stated the suit land may not be the same as that of the defendant and she sought the courts protection. Regardless of this she claims Adverse Possession and thus asks that an injunction do issue against the defendant till the determination of the Adverse Possession.
II: Findings
6. The issue herein is one of an injunction. Should this court grant the plaintiffs injunction orders? She holds no title as she says she bought land from a group known as Thome Farmers 5. This is a share certificate that she hold for entry parcel No.368 and 369. The purchase was made in 1975 and she still awaits the title. Her plot number being 154.
7. The defendant categorically said they do not know Thome Farmers No.5 and are therefore strangers to the plaintiff and to the said farmers.
8. In this case the plaintiff has said to have lived on the land for 18 years. She claims that the land never belonged to the defendants. Is this a case of mistaken identity?
9. I would find that if the plaintiff was successful in her case if she is evicted now she would suffer irreparable loss.
10. I hereby grant the application for an injunction till the determination of this suit. It may be imperative that both parties visit the suit premises to ascertain the exact location of the same.
11. The issue nonetheless is one of Adverse Possession and has the plaintiff been on the suit land un interrupted for 12 years?. If this is so an injunction at this stage is appropriate.
12. I award costs to applicants/plaintiff.
Dated this 24th day of May 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
S. Kingara for Kingara & Co. Advocates for the plaintiff
P.T. Kiiru & E.M. Njenga for Kimani & Kamiro & Co. Advocates for the defendant.