[2015] KEELC 772 (KLR)
The court found that the plaintiffs failed to disclose the existence of previous and consolidated suits involving the same subject matter, which was material to the application for interim injunction. The court had previously ordered consolidation of several suits concerning subdivisions of Nairobi/Block 107-Umoja...
Source-derived case information.
- Citation
- [2015] KEELC 772 (KLR)
- Parties
- Plaintiff: Mercy Wanjiru; Plaintiff: Peter Maina Ndegwa; Plaintiff: Justus Wainaina Njuguna; Plaintiff: David Njeru Nyaga; Defendant: Gerald Kariuki Wabacha; Defendant: John Wabacha; Defendant: Michael Kangethe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 1560 of 2014
- Procedural Posture
- Civil Suit / Ruling on Interim Injunction Application
- Outcome
- interim injunction substituted with status quo order; costs in the cause
- Judges
- CM Kariuki
- Legal Topics
- Interim Injunctions, Consolidation of Suits, Status Quo Orders, Proprietary Rights, Non Disclosure, Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Wanjiru
Plaintiff
Peter Maina Ndegwa
Plaintiff
Justus Wainaina Njuguna
Plaintiff
David Njeru Nyaga
Plaintiff
Gerald Kariuki Wabacha
Defendant
John Wabacha
Defendant
Michael Kangethe
Defendant
Procedural Posture
Civil Suit / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an interim injunction restraining the defendants from interfering with the suit properties pending determination of the suit.
- 2 Whether the plaintiffs failed to disclose material facts regarding previous and consolidated suits involving the same subject matter.
- 3 Whether the ex parte interim orders previously granted should be set aside or substituted in light of the consolidation of related suits.
Ratio Decidendi
The court found that the plaintiffs failed to disclose the existence of previous and consolidated suits involving the same subject matter, which was material to the application for interim injunction. The court had previously ordered consolidation of several suits concerning subdivisions of Nairobi/Block 107-Umoja Zone 9, with overlapping parties and issues. As such, no single suit could be properly adjudicated independently, and the ex parte interim orders were granted without full disclosure. In light of the consolidation and existing orders for parties to maintain the status quo (no evictions, sales, transfers, or permanent developments), the court substituted the ex parte injunction...
Court Disposition
interim injunction substituted with status quo order; costs in the cause
Orders
- The ex parte interim injunction is set aside and substituted with an order that parties maintain the status quo as previously ordered in the consolidated suits (no evictions, sales, transfers, or permanent developments).
- Parties are directed to complete compliance with Order 11 of the Civil Procedure Rules within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
LAND AND ENVIRONMENTAL DIVISION
ELC CIVIL SUIT NO. 1560 OF 2014
MERCY WANJIRU……....…….………………....................1ST PLAINTIFF
PETER MAINA NDEGWA….……..……………...………..2ND PLAINTIFF
JUSTUS WAINAINA NJUGUNA……...………………….3RD PLAINTIFF
DAVID NJERU NYAGA…………………..…………………4TH PLAINTIFF
VERSUS
GERALD KARIUKI WABACHA …..………....…………..1ST DEFENDANT
JOHN WABACHA………………….…………………….2ND DEFENDANT
MICHAEL KANGETHE ………………..…………………3RD DEFENDANT
RULING
The plaintiffs by a Notice of Motion dated 17th December 2014 seek an interim injunction restraining the Defendants by themselves, their servants, agents and/or employees from interfering with the plaintiffs quiet enjoyment and user of parcels of land known as Nairobi/Block 107/1131 and Nairobi/Block 107/1132 situated at Umoja Zone Nine, Nairobi pending the hearing and determination of this suit.
The application by the plaintiffs is based on the grounds set out on the face of the application and on the affidavit of Peter Maina Ndegwa, the 2nd plaintiffs herein sworn on 17th December 2014. Inter alia the plaintiffs claim that:-
They are the registered proprietors of parcels of land known as Nairobi/Block 107/1131 and Nairobi/Block 107/1132 situated in Umoja Zone nine, Nairobi.
They have all along been in possession of the said properties.
The defendants have trespassed upon the plaintiffs parcels of land by erecting a perimeter wall and illegal structures thereon.
The defendants are engaging in wanton destruction of the plaintiffs properties and unless the orders issued directing supervision by the police, it will be difficult for the plaintiff to enforce the same.
The plaintiff stands to suffer irreparable loss/damages unless the defendant is restrained herein.
The plaintiffs were granted exparte interim orders of injunction for 14 days to be enforced by the police on 18th December 2014 by Hon. Lady Justice Nyamweya.
Upon being served with the application the Defendants through the law firm of Betty Mwenesi & Associates filed grounds of opposition dated 27th January 2015 and a replying affidavit sworn by Gerald Kariuki Wabacha, the 1st Defendant on the same date. The grounds of opposition filed by the defendants are that :-
The applicants have failed to disclose that there have been previous suits filed touching on the same subject matter between the plaintiffs and the defendants.
The application is frivolous vexatious and an abuse of the court process.
The defendants in the replying affidavit averred that the plaintiffs had misled the court to obtain the exparte interim orders as the suit properties are the subject matter of a previous suit filed by the plaintiffs namely HCCC NO.636 of 2010 where the plaintiffs have sued Kiambu Dandora Farmers Limited over the same subject property. The Defendants further stated there are several suits which have been consolidated touching on the same suit property where the plaintiffs herein are named as Defendants. The Defendants have annexed a copy of the amended plaint in HCCC NO. 347 of 2013 marked “GKW1” where the 1st and 2nd plaintiffs are sued as the 46th and 47th Defendants respectively. The plaintiffs in HCCC NO. 347 of 2013 inter alia seek declaratory orders that the transfers and titles issued in respect of land parcel Nos. Nairobi/Block 107/1131 and Nairobi/Block 107/1132 (the subject parcels in the suit) among other parcels of land are null and void.
The plaintiffs in a supplementary affidavit sworn on 4th February 2015 in response to the defendants replying affidavit averred that they were unaware of any orders of consolidation of any suits and maintained the suits are between different parties with no relationship to the present suit. The plaintiffs admit there is HCCC NO.636 of 2010 where the plaintiffs with other persons have sued Kiambu Dandora Farmers Co. Ltd seeking an order of injunction restraining the said company from in any manner dealing with land parcel Nairobi/Block 107/1131 among other parcels of land.
The plaintiffs deny being aware of the order consolidating the several suits that the Defendants claim were consolidated and assert that their claim against the Defendants can stand on its own.
The parties filed submissions as directed by the court. I have considered the pleadings and the parties filed submissions. The court takes congnisance that it has infact ordered consolidation of the several suits namely:-
Nairobi HC ELC NO. 347 of 2013
Nairobi HC ELC NO. 636 of 2010
Nairobi HC ELC NO. 618 of 2010
Nairobi HC ELC NO. 223 of 2011
Nairobi HC ELC NO. 256 of 2010
Nairobi HC ELC NO. 1679 of 2010
In all these suits the subject matter is the subtitles that have resulted from the subdivision of land parcel Nairobi/Block 107-Umoja Zone 9. Kiambu Dandora Company Limited and the Nairobi City County are the key players in the alleged allocation of the subplots claimed by the various parties in all the suits. My view is that no suit among the consolidated suits can be properly adjudicated independently of the other suits as the issues are indeed cross cutting and a decision in one suit would invariably affect the other suits. This is what informed the order of consolidation.
In the premises I am satisfied the court as on 18th December 2014 when it granted the interim order of injunction did not have full disclosure of all the full facts and information, and if it had, most probably would not have granted the exparte orders that it did. In the context of the other pending cases which have been consolidated the orders would be unmerited. Considering that the court in the consolidated cases has ordered that the parties observe and maintain the status quo where there are no evictions, sales and/or transfers and no constructions and/or developments of a permanent nature are permitted, I would substitute the same order in the present suit. In consequence therefore the parties are directed to complete compliance with Order 11 of the Civil Procedure Rules within the next 30 days from the date hereof whereafter the parties will have the matter fixed for pretrial directions.
The costs for the instant application is directed to be in the cause.
Ruling dated, signed and delivered this 7th day of May,.2015.
J. M. MUTUNGI
JUDGE
In the presence of:
Mr. Mokaya for Ondabu for the Plaintiffs
Mr. Ouma for Mrs. Mwenesi for the Defendants