[2018] KEELC 113 (KLR)
The court found that the plaintiffs/applicants' occupation of the suit property since 1967 and the defendant's recent acquisition raised substantive issues suitable for determination at trial. However, the plaintiffs' occupation was under imminent threat due to the defendant's actions and stated intention to take...
Source-derived case information.
- Citation
- [2018] KEELC 113 (KLR)
- Parties
- Plaintiff: Lucy Wambui Kamau; Plaintiff: Peter Kibe Kamau; Defendant: Leonard Nganga Karuga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 267 of 2018
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Application for Conservatory Orders
- Outcome
- interlocutory application allowed; conservatory orders granted
- Judges
- LN Gacheru
- Legal Topics
- Adverse Possession, Conservatory Orders, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wambui Kamau
Plaintiff
Peter Kibe Kamau
Plaintiff
Leonard Nganga Karuga
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the plaintiffs are entitled to be declared proprietors of LR.No.Kabete/Gathiga/T.180 by virtue of adverse possession.
- 2 Whether the defendant, as a recent purchaser, is entitled to vacant possession pending determination of the main suit.
- 3 Whether conservatory orders should issue to restrain eviction or interference with the plaintiffs' occupation before trial.
Ratio Decidendi
The court found that the plaintiffs/applicants' occupation of the suit property since 1967 and the defendant's recent acquisition raised substantive issues suitable for determination at trial. However, the plaintiffs' occupation was under imminent threat due to the defendant's actions and stated intention to take possession. To prevent possible eviction or irreparable harm before the main issues are resolved, the court held that conservatory orders were warranted. The defendant was restrained from seeking vacant possession or interfering with the plaintiffs' occupation until the Originating Summons is heard and determined. The court also granted procedural directions for filing responses...
Court Disposition
interlocutory application allowed; conservatory orders granted
Orders
- Applicant’s Notice of Motion dated 5th November 2018 allowed in terms of prayers No.5, 6, 7 and 8.
- Defendant is restrained from seeking vacant possession for the plaintiffs until the Originating Summons is heard and determined.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT THIKA
ELC CASE NO.267 OF 2018
LUCY WAMBUI KAMAU........................1ST PLAINTIFF/APPLICANT
PETER KIBE KAMAU............................2ND PLAINTIFF/APPLICANT
-VERSUS-
LEONARD NGANGA KARUGA................DEFENDANT/APPLICANT
RULING
The Applicants have filed an Originating Summons dated 5th November 2018 seeking to be declared the registered proprietors of the suit property LR.No.Kabete/Gathiga/T.180, by virtue of having lived on the suit property in an open and peaceful possession and occupation since 1967. They have alleged that the Defendant has recently acquired the suit property and has never occupied the same. However, he has threatened to demolish the Plaintiffs’ houses and has even disconnected electricity and is intending to evict them. They have therefore sought for various conservatory orders in the Notice of Motion dated 5th November 2018.
The Defendant/Respondent has filed a Replying Affidavit dated 27th November 2018, and had admitted having acquired the suit property recently as an innocent purchaser for value. That he intends to take possession and develop the suit property LR.No.Kabete/Gathiga/T.180 and he therefore expects the Plaintiffs/Applicants to move out voluntarily.
There is no doubt that the Defendant acquired the suit property on 3rd October 2018, as is evident from the title deed attached to his Replying Affidavit. He has admitted that he expects the Plaintiffs/Applicants to move out voluntarily from the suit property. However, the Plaintiffs/Applicants have averred that they have lived on the suit property all their lifetime from 1967. The issues of whether the Plaintiffs have lived on the suit property from 1967 and whether the Defendant/Respondent is an innocent purchaser are issues which can only be determined in the main trial.
However, it is evident that the Defendant acquired the suit property on 3rd October 2018 and he does expect the Plaintiffs/Applicants to move out voluntarily.
Therefore the Court finds that the Plaintiffs/Applicants stay on the suit property is threatened or there is a danger of them being evicted from the suit property before the contested issues have been resolved. This is a matter that deserves conservatory orders.
For the above reasons, the Court allows the Applicant’s Notice of Motion dated 5th November 2018 in terms of prayers No.5, 6, 7and8.
Further the Defendant is restrained from seeking vacant possession for the Plaintiffs until the Originating Summons is heard and determined. Costs shall be in the cause.
Further, the Respondent is granted leave of 14 days to file his response to the Originating Summons and Plaintiffs have correspondence leave to file any response if need be. Mention on 27th February 2019 for taking directions on how to proceed with the Originating Summons.
This Ruling therefore disposes off the Notice of Motion dated 5th November 2018.
It is so ordered.
Dated, Signed and Delivered at Thika this 28th day of November 2018.
L. GACHERU
JUDGE
In the presence of
Mr. Kamau for the Plaintiffs/Applicants
Mr. Magani holding brief for Mr. Mwaura Shairi for the Defendant
Lucy - Court clerk
L. GACHERU
JUDGE
28/11/2018