[2017] KEELC 284 (KLR)
The court found that the Plaintiff had established a prima facie case for the grant of a temporary injunction. The Plaintiff's documentary evidence, including the assignment and lease, supported his claim to ownership, and the 2nd Defendant's records corroborated his status as registered owner. The lease relied upon...
Source-derived case information.
- Citation
- [2017] KEELC 284 (KLR)
- Parties
- Plaintiff: Joel Munyoki Munene; Defendant: Agnes Kagure Kariuki; Defendant: The City County of Nairobi; Defendant: The Chief Lands Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 65 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in part
- Judges
- AK Bor
- Legal Topics
- Ownership Disputes, Double Allocation, Injunctive Relief, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Munyoki Munene
Plaintiff
Agnes Kagure Kariuki
Defendant
The City County of Nairobi
Defendant
The Chief Lands Registrar
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of a temporary injunction against the 1st Defendant.
- 2 Whether the Plaintiff is the legal owner of Nairobi Block 83/1903.
- 3 Whether the 1st Defendant lawfully acquired the Suit Property.
Ratio Decidendi
The court found that the Plaintiff had established a prima facie case for the grant of a temporary injunction. The Plaintiff's documentary evidence, including the assignment and lease, supported his claim to ownership, and the 2nd Defendant's records corroborated his status as registered owner. The lease relied upon by the 1st Defendant was executed after the City Council of Nairobi had ceased to exist, raising questions about its validity. The court concluded that the Plaintiff was entitled to protection of his interest in the Suit Property pending full trial, and granted the orders sought in paragraphs (c) and (d) of the application, declining prayers (e) and (f) as premature.
Court Disposition
interlocutory injunction granted in part
Orders
- Temporary injunction restraining the 1st Defendant or her agents from entering, occupying, trespassing, selling or interfering with Nairobi Block 83/1903 pending hearing and determination of the suit.
- Plaintiff awarded costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC. CASE NO. 65 OF 2017
JOEL MUNYOKI MUNENE.............................PLAINTIFF
-VERSUS-
AGNES KAGURE KARIUKI..................1ST DEFENDANT
THE CITY COUNTY OF NAIROBI......2ND DEFENDANT
THE CHIEF LANDS REGISTRAR.......3RD DEFENDANT
RULING
In the application dated 31/1/2017, the Plaintiff seeks a temporary injunction to restrain the 1st Defendant or her agents from entering, occupying, trespassing, selling or in any other way interfering with the property known Nairobi Block 83/1903 (“the Suit Property”) pending hearing and determination of this suit.
He claims to be the legal owner of the Suit Property having bought it from one Erastus Nyaga Timothy; who bought it from the original owner known as Silas Mugo Kithenji. He claims the 2nd Defendant issued him an assignment dated 31/5/2007 giving effect to the transfer to him. When he attempted to obtain a certificate of lease over the Suit Property, his application was rejected on the ground that there has been double allocation of the plot in question. The Plaintiff claims to have been paying rent and rates charged on the Suit Property. He also states that he has been enjoying quiet and peaceful occupation of the suit land from 31/5/2007 and is apprehensive that the 1st Defendant may transfer the Suit Property to unsuspecting third parties or cause it be encumbered to his detriment. He swore the affidavit in support of the application and annexed copies of the letter of allotment dated 15/12/1993, beacon certificate, the assignment and lease in respect of Nairobi Block 83/1903.
The 1st Defendant swore a replying affidavit on 31/7/2017 in opposition to the application for injunction. She claims that she bought plot number A28-Umoja Innercore Sector III from Joseph Chege Muturi on 15/9/2016. This is the plot she claims was later registered as Nairobi Block 83/1903. She was issued a certificate of lease over this parcel of land. She claims to be in possession of the Suit Property and urges the court to dismiss the Plaintiff’s application.
Karisa Iha, the Director of Legal Affairs at the Nairobi City County Government swore the replying affidavit on 6/4/2017 on behalf of the 2nd Defendant. He swears that the Plaintiff is the registered owner according to the records held by the 2nd Defendant.
The Court has looked at the lease annexed by the 1st Defendant to her replying affidavit which is shown to have been executed by the mayor and town clerk in November, 2016. By that date the City Council of Nairobi had ceased to exist by operation of law after the county Governments came into being following the promulgation of the 2010 Constitution. The court notes that the lease was signed by Lydia Mbogo Kwamboka and not the 1st Defendant.
The question as to how the 1st Defendant acquired the Suit Property will have to be determined at the full trial.
The court is satisfied that the Plaintiff has demonstrated that he has a prima facie case against the 1st Defendant and grants the orders sought in paragraphs (c) and (d) of the application dated 31/1/2017. The court declines to grant prayers (e) and (f) as they cannot be granted before the suit is heard. The Plaintiff will have the costs of this application.
Dated and delivered at Nairobi this 5th day of December 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Keya for the Plaintiff
No appearance for the Defendant
Mr. V. Owuor- Court Assistant