[2018] KEELC 1963 (KLR)
The court found that the Plaintiff established a prima facie case by demonstrating long-standing possession and a plausible claim to the Suit Property, which was not controverted by the Defendant. The Defendant’s preliminary objection on limitation and jurisdiction was not sufficient at this interlocutory stage, as...
Source-derived case information.
- Citation
- [2018] KEELC 1963 (KLR)
- Parties
- Plaintiff: Lucy Ngugi Kagai; Defendant: Joseph Njuguna Kariuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 139 of 2018
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for temporary injunction allowed.
- Judges
- AK Bor
- Legal Topics
- Temporary Injunctions, Land Ownership Disputes, Limitation of Actions, Fraud in Land Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lucy Ngugi Kagai
Plaintiff
Joseph Njuguna Kariuki
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether the Plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the Plaintiff's claim is statute barred under the Limitation of Actions Act.
Ratio Decidendi
The court found that the Plaintiff established a prima facie case by demonstrating long-standing possession and a plausible claim to the Suit Property, which was not controverted by the Defendant. The Defendant’s preliminary objection on limitation and jurisdiction was not sufficient at this interlocutory stage, as evidence was required to determine when the Plaintiff discovered the alleged fraud. The balance of convenience and the risk of irreparable harm to the Plaintiff if the property were alienated before trial justified the grant of a temporary injunction. The court thus allowed the Plaintiff’s application for interlocutory relief, pending full hearing and determination of the suit.
Court Disposition
Plaintiff's application for temporary injunction allowed.
Orders
- A temporary injunction is granted restraining the Defendant from selling, alienating, dealing or interfering with Dagoretti/Riruta/3882 until the suit is heard and determined.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 139 OF 2018
LUCY NGUGI KAGAI...........................................PLAINTIFF
VERSUS
JOSEPH NJUGUNA KARIUKI..........................DEFENDANT
RULING
The Plaintiff seeks a temporary injunction to restrain the Defendant from selling, alienating, dealing or interfering with the land known as Dagoretti/Riruta/3882 (“the Suit Property”) which was hived from Dagoretti/Riruta/1115 until this suit is heard and determined. The Plaintiff claims she is the rightful owner of the Suit Property having inherited it from her late husband who bought it in 1991. She claims she has been in possession and has resided on the Suit Property since 1991. The Plaintiff claims that the Defendant unlawfully obtained a title over the Suit Property on 30/9/1998 yet she holds the original title deed for the mother title being Dagoretti/Riruta/1115. The Plaintiff avers that there has been litigation in the past over the ownership of the Suit Property in which her husband’s title over the Suit Property was upheld. She attached a copy of the land certificate over Dagoretti/Riruta/1115 in the name of Miringu Njoroge together with the suit papers for the cases filed in respect of this land.
The Defendant filed a notice of preliminary objection citing the grounds that this court has no jurisdiction to deal with this matter pursuant to Section 8(1) of the Land Control Act and Section 7 of the Limitation of Action Act. He also filed a Replying Affidavit in which he states that he purchased a portion of Dagoretti/Riruta/1115 from Mwathi Njoroge who jointly owned it with Mirungu Njoroge. He mentioned the suits referred to by the Plaintiff in his affidavit. He maintains that the Plaintiff’s claim is statute barred since she did not file suit from 2003 when she claims she discovered the fraud.
Under Section 26 of the Limitation of Actions Act, where an action is based upon the Defendant’s fraud the period of limitation begins to run when the Plaintiff discovers the fraud. Evidence will have to be led on when the Plaintiff discovered that the Defendant had fraudulently transferred the Suit Property to his name.
The issue the court has to consider at this stage is whether the Plaintiff has a prima facie case against the Defendant with a probability of success, and whether she will suffer irreparable harm if the injunctive orders sought are not granted. The Plaintiff’s claim that she has been in possession of the Suit Property was not controverted by the Defendant.
The court is satisfied that the Plaintiff has a prima facie case against the Defendant and allows the application dated 26/3/2018. Costs shall be in the cause.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Mungai for the Plaintiff
Ms. King’e for the Defendant
Mr. V. Owuor- Court