[2012] KEHC 3969 (KLR)
The court determined that the issue of ownership of the suit premises, RUIRU EAST BLOCK 5/66, is central to the dispute and can only be resolved after a full trial where all parties present their evidence. The court found that it would be unjust to grant substantive relief, such as rectification of the register or...
Source-derived case information.
- Citation
- [2012] KEHC 3969 (KLR)
- Parties
- Plaintiff: Joan Nyokabi Ndungu; Defendant: Stanley Mutimu Njogu; Defendant: George Ng’ang’a Wanyoike
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 286 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications Prior to Full Trial
- Outcome
- Interlocutory applications dismissed; status quo to be maintained pending trial.
- Judges
- FI Koome
- Legal Topics
- Land Ownership Disputes, Rectification of Register, Injunctive Relief, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Nyokabi Ndungu
Plaintiff
Stanley Mutimu Njogu
Defendant
George Ng’ang’a Wanyoike
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications Prior to Full Trial
Legal Issues
- 1 Whether the plaintiff is the rightful owner of RUIRU EAST BLOCK 5/66.
- 2 Whether interlocutory injunctive relief should be granted to restrain dealings with the suit land pending trial.
- 3 Whether the land register should be rectified prior to full trial.
Ratio Decidendi
The court determined that the issue of ownership of the suit premises, RUIRU EAST BLOCK 5/66, is central to the dispute and can only be resolved after a full trial where all parties present their evidence. The court found that it would be unjust to grant substantive relief, such as rectification of the register or permanent injunctive orders, at the interlocutory stage. Instead, the court held that the appropriate course is to maintain the status quo regarding the suit property until the matter is heard and determined on its merits. Consequently, the ex parte injunction previously granted was vacated, and all parties were directed to prepare for trial. Costs of the applications were...
Court Disposition
Interlocutory applications dismissed; status quo to be maintained pending trial.
Orders
- The notice of motion dated 28th April, 2011 is disallowed.
- The ex parte order of injunction issued on 17th October, 2011 is vacated.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 286 OF 2005
JOAN NYOKABI NDUNGU...........................................PLAINTIFF
VERSUS
STANLEY MUTIMU NJOGU
GEORGE NG’ANG’A WANYOIKE..............................DEFENDANTS
RULING
JOAN NYOKABI NDUNGU, the plaintiff in the matter sued STANLEY MUTIMU NJOGUandGEORGE NG’ANG’A WANYOIKE, the 1st and 2nd Defendants respectively. The plaintiff’s claim is that she is the registered proprietor of the parcel of land known as RUIRU EAST BLOCK 5/66 [the suit premises] situated in Kahawa Area, Nairobi.
The plaintiff alleges that sometime in July 2004, she visited the suit land and found someone had put a perimeter fence around the suit premises. She later learnt that her property was purportedly transferred through fraud to the defendants by unknown people. She, therefore, filed this suit seeking for inter alia mandatory injunction to restrain the defendants, their agents either by themselves or agents from trespassing or alienating the suit premises. She also sought for an order directing the District Land Registrar, Thika to rectify the register in respect of the suit land by cancelling entries 4, 5, 6 and 7 therein.
At first, interlocutory judgment was entered in favourof the plaintiff on 17th July, 2006. The matter even proceeded for formal proof and judgment was delivered on 4th March, 2008. However, by a ruling of Msagha, J dated 9th December, 2010; the default judgment was set aside. In that ruling the Judge noted the following:
“The 2nd defendant therefore should be given an opportunity to canvass those points. I am inclined to allow this application and order that the default judgment shall be and is hereby set aside and the defendant granted leave to file his defence within 14 days from the date hereof. The costs of this application shall be in the cause.”
After that order was made, three interlocutory applications were filed. In the interest of saving judicial time and to enable parties move on with the substantive matter, I directed those applications should be argued together primarily because the notice of motion dated 13th October, 2011, by the 2nd defendant seeks for orders that the plaintiff be restrained from interfering with the suit land by way of transferring, charging or constructing. Secondly, the court to stay any registration or transaction in respect of the suit land. This application came up for hearing exparteunder certificate of urgency and an interim exparte order was issued on 17th October, 2011. The notice of motion dated 27th October, 2011, seeks for setting aside the exparte order. In essence, this application can be deemed to be the replying of the one dated 13th October, 2011.
Considering what has transpired in this matter, it is in the interest of justice that the issue of ownership of the suit premises be determined after a full trial. The notice of motion dated 28th April, 2011, is taken out by Peter Kungu Wanyoike who claims that he is holding a power of attorney on behalf of the 2nd defendant. He claims that the register of the suit land can be rectified by removing the name of the 2nd defendant. With respect to the 2nd defendant, that is a matter for trial. There is no short cut; the parties have to adduce evidence to show who is the rightful owner of the suit premises. I, therefore, disallow that notice of motion.
The second notice of motion seeks for restraining orders against the plaintiff. For the same reasons as above, it is only after a full trial that the issue of ownership of the suit premises can be determined. The plaintiff claims she is the registered owner of the title; the only order that renders itself just in the circumstances, is for the maintenance of the status quo in respect of RUIRU EAST BLOCK 5/66 until the suit is heard and determined. The exparte order of injunction issued on 17th October, 2011 is hereby vacated.
The parties are directed to prepare the suit for hearing. Costs of this application shall be in the cause.
Ruling read and signed this 30th day of March, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 1st December, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity.