[2015] KEHC 1691 (KLR)
The court found that both parties claim ownership of different plots, but the confusion lies in the physical location of the plots on the ground. Since the dispute cannot be resolved without a clear determination of the actual locations, the court held that it would be in the interest of justice to maintain the...
Source-derived case information.
- Citation
- [2015] KEHC 1691 (KLR)
- Parties
- Plaintiff: Julius Gitonga Njoroge; Defendant: Embakasi Ranching Co. Ltd; Defendant: Samuel Njogu Kimita
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1071 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application for Injunction
- Outcome
- Status quo order granted; survey ordered; costs in the cause.
- Judges
- LN Gacheru
- Legal Topics
- Injunctive Relief, Ownership Dispute, Trespass, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Gitonga Njoroge
Plaintiff
Embakasi Ranching Co. Ltd
Defendant
Samuel Njogu Kimita
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the 2nd defendant from interfering with Plot No. 1393 pending determination of the suit.
- 2 Whether the actions of the 2nd defendant amount to trespass on the plaintiff's property.
- 3 Whether the dispute over the physical location of the plots can be resolved without an independent survey report.
Ratio Decidendi
The court found that both parties claim ownership of different plots, but the confusion lies in the physical location of the plots on the ground. Since the dispute cannot be resolved without a clear determination of the actual locations, the court held that it would be in the interest of justice to maintain the status quo and prevent any party from altering the state of the disputed property. The court ordered an independent survey by the Department of Surveys of Kenya, in conjunction with the 1st defendant, to establish the physical locations of the plots. Pending the outcome of the survey and the hearing of the main suit, no party is to enter, construct, dispose of, or otherwise...
Court Disposition
Status quo order granted; survey ordered; costs in the cause.
Orders
- An order of status quo is entered: no party shall enter, construct, dispose of, or in any manner alienate the disputed plot pending hearing and determination of the suit or further court orders.
- A surveyor from the Department of Surveys of Kenya, with the 1st defendant, shall undertake a survey to establish the physical locations of the plots in issue and file a report within 60 days; plaintiff and 2nd defendant to share surveyor's fees equally.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
MILIMANI LAW COURTS
ELC NO. 1071 OF 2014
JULIUS GITONGA NJOROGE..............................................PLAINTIFF
VERSUS
EMBAKASI RANCHING CO. LTD............................1ST DEFENDANT
SAMUEL NJOGU KIMITA.......................................2ND DEFENDANT
RULING
Coming up for determination is the Plaintiff’s application dated 7th August 2014. The Plaintiff prays for an order of injunction to restrain the 2nd Defendant from entering, evicting, constructing, selling and or transferring or in any other way interfering with the Plaintiff’s ownership of Plot No. 1393 Share Certificate No. 14227, pending the hearing and determination of the suit. The application is premised on grounds that the Plaintiff is the owner of the suit plot and has been in possession since 2006. However, that the 2nd Defendant has constructed a wall which has denied the Plaintiff access to the plot.
The application is supported by an affidavit sworn by the Plaintiff wherein he deposed that in 1992, the 1st Defendant advertised in the newspaper that it was selling shares and that the shareholders would be allocated plots. Based on the advertisement, the 1st Plaintiff paid Kshs. 24,000/- for the purchase of a plot together with stamp duty, transfer and survey fees and was issued with Share Certificate No. 14227 on 9th September 1992and allocatedPlot No. 1393. It was his deposition that the 2nd Defendant action of constructing a wall on his property amounted to trespass and a contravention of his right to ownership thereof.
The application was opposed by the 2nd Defendant, who swore a Replying Affidavit on 1st September 2014. He deposed that he was a stranger to the Plaintiff’s averments since they refer to Plot No. 1393 Share Certificate No. 14227 whereas his owns Plots No. 3654 and 3655 under Share Certificate No. 52070. The 2nd Defendant deposed that he paid Kshs. 70,000/- for the two whereafter the 1st Defendant showed him the plots and he constructed the perimeter wall thereon. He reiterated that he had no claim whatsoever on Plot No. 1393, belonging to the Plaintiff and thus denied the allegation of trespass, deposing that he was the lawful owner of Plots 3654 and 3655.
The application was canvassed by way of written submissions which I have carefully read. The dispute between the parties is in respect to the physical location of their plots as they each claim to be owners of different plots. Clearly, the confusion is on the ground. The Defendant’s counsel submitted that it would be prudent for the Court to order that there be an independent report either from the 1st Defendant or a Government Surveyor which would resolve the issue. I agree with this submission because the report will assist the Court to make a proper finding as to the ownership of the plot in dispute. Evidently, therefore, this dispute cannot be adjudicated over at this stage devoid of a hearing and a report indicating the actual locations of the said plots. Both parties have shown their interests over the properties and it would be in the interest of justice that status quo be maintained.
Having now considered the pleadings in general and the submissions , the Court finds it prudent to order that Status Quo be maintained in the following terms:-
The orders of the court are as follows:
1. An order of Status quo is hereby entered to the effect that no party shall enter, construct, dispose off or in any manner alienate the disputed plot pending the hearing and determination of the suit or further orders of this court.
2. A Surveyor from the Department of Surveys of Kenya, in conjunction with the 1st Defendant do undertake a survey exercise to establish the physical locations of the plots in issue. Thereafter, a report be filed within 60 days of the date hereof. Both Plaintiff and 2nd Defendant shall meet the Surveyor’s fees equally.
3. Costs of the application shall be in the cause.
It is so ordered.
Dated, Signed and Delivered this 5thday of June,2015
L. GACHERU
JUDGE
In the Presence of:-
M/s Muthoni holding brief Okido for the Plaintiff/Applicant
None attendance for the 1st Defendant/Respondent
Mr Kimathi for the 2nd Defendant/Respondent
Hilda : Court Clerk
L.GACHERU
JUDGE
Court:
The matter to be mentioned on 22nd September 2015 to confirm if the surveyor’s Report has been filed.
L GACHERU
JUDGE
5/6/2015