[2020] KEELC 3730 (KLR)
The court found that the plaintiff failed to provide sufficient evidence to conclusively establish ownership of the suit property, as he only produced an internal certificate from the Housing Scheme and did not demonstrate the status of the larger parcel of land. The plaintiff also failed to provide evidence to...
Source-derived case information.
- Citation
- [2020] KEELC 3730 (KLR)
- Parties
- Plaintiff: Michael Kinyua; Defendant: Simon Chege Rukua; Defendant: Wallace Mwarage; Defendant: Salim Tukutu Maema; Defendant: James Nyaga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 724 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff partially successful; permanent injunction granted; other prayers declined.
- Judges
- BM Eboso
- Legal Topics
- Ownership Disputes, Injunctive Relief, Housing Scheme Allocation
- 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
Michael Kinyua
Plaintiff
Simon Chege Rukua
Defendant
Wallace Mwarage
Defendant
Salim Tukutu Maema
Defendant
James Nyaga
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the bonafide owner of Plot No G3-05 in Ruai Chokaa Housing Scheme.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with the suit property.
- 3 Whether the plaintiff is entitled to mesne profits and compensation for expenses incurred in pursuing the matter.
Ratio Decidendi
The court found that the plaintiff failed to provide sufficient evidence to conclusively establish ownership of the suit property, as he only produced an internal certificate from the Housing Scheme and did not demonstrate the status of the larger parcel of land. The plaintiff also failed to provide evidence to support claims for mesne profits and compensation. However, the court was satisfied that the plaintiff had demonstrated a sufficient interest in the property and that the balance of convenience favoured granting a permanent injunction to restrain the defendants from interfering with the suit property. The court therefore granted the injunction and awarded costs to the plaintiff,...
Court Disposition
Plaintiff partially successful; permanent injunction granted; other prayers declined.
Orders
- A permanent injunction is issued restraining the defendants and their agents/servants from interfering with, trespassing on, alienating or dealing with Plot No G3-05 situated in Ruai Chokaa Housing Scheme, Nairobi.
- The defendants shall bear costs of this suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC. CASE NO. 724 OF 2016
MICHAEL KINYUA.................................................................................PLAINTIFF
VERSUS
SIMON CHEGE RUKUA.............................................................1 ST DEFENDANT
WALLACE MWARAGE.............................................................2 ND DEFENDANT
SALIM TUKUTU MAEMA........................................................3 RD DEFENDANT
(Sued in their capacity as Officials of Ruai Chokaa Housing Scheme)
JAMES NYAGA.......... ..................................................................4 TH DEFENDANT
JUDGMENT
1. The plaintiff brought this suit on 29/6/2016 through a plaint of even date. An amended plaint dated 28/2/2018 was filed on 9/3/2018. He sought the following orders:
a) A declaration that the plaintiff is the bonafide owner of Plot No G 3-05 situate in Ruai Chokaa Housing Scheme.
b) A permanent injunction to restrain the defendants or their agents from interfering, trespassing, alienating or in any way dealing with Plot No G 3 situate in Ruai Chokaa Housing Scheme.(sic)
c) An order against the 4th defendant for mesne profits to be quantified during the hearing for illegal detainer of property from 2010 until payment in full.
d) An order for compensation of the plaintiff of the amounts to be quantified during the hearing of the suit spent in the follow up of this matter from 2010.
e) Any other relief this honourable court shall deem fit to grant.
2. Service of summonses was effected upon the defendants through a notice in the Daily Nation edition of 19/7/2018. The defendants did not enter appearance. Consequently, the case proceeded to hearing as an undefended cause.
3. The case of the plaintiff is contained in the amended plaint, evidence taken on 13/3/2019 and written submissions dated 2/12/2109. In summary, the plaintiff contends that on 3/10/2009, he purchased an unsurveyed piece of land designated as Plot No G3-05 (the suit property) from Mrs Agnes Kagure Karumba who was the first allotee of the said plot at a consideration of Kshs 140,000. The suit property was a plot within Ruai Chokaa Housing Scheme. Officials of the Housing Scheme subsequently effected an internal transfer of the suit property into the name of the plaintiff. At all material times, officials of the Housing Scheme confirmed to the plaintiff that Mrs Karumba was the lawful owner of the suit property. The Housing Scheme issued him with an internal certificate of ownership after he had paid the requisite charges. He was put in possession. In 2010, the 4th defendant trespassed onto the suit property and erected structures thereon. His efforts to recover the suit property through the Housing Scheme’s Office, the Police, and the Local Administration, had come to naught. Consequently, he brought this suit seeking the above orders.
4. I have considered the pleadings, evidence and submissions before court. The suit property is unsurveyed. It is not clear if it is part of a larger registered parcel of land. The plaintiff did not tender evidence relating to the larger parcel of land within which the suit property falls. All he stated is that the suit property was sold to him by Mrs Karumba who had been allocated the suit property by Ruai Chokaa Housing Scheme. The only ownership document which the plaintiff produced is Certificate No 1654 purportedly issued by Ruai Chokaa Housing Scheme. Secondly, the plaintiff did not tender any evidence to support his claim for mesne profits and for an order for compensation in terms of prayer (d).
5. Consequently, I will not grant the plaintiff the declatory order sought in prayer (a), the mesne profitssought in prayer (c), and the plea for compensation in terms of prayer (d). I will only grant the plaintiff prayer (b) of the amended plaint, together with costs of the suit.
6. Consequently, judgment is hereby entered in favour of the plaintiff against the defendants in the following terms:
a) A permanent injunction is hereby issued restraining the defendants and their agents/servants against interfering with, trespassing on, alienating or dealing with Plot No G3. 05 situated in Ruai Chokaa Housing Scheme, Nairobi.
b) The defendants shall bear costs of this suit.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF JANUARY 2020.
B M EBOSO
JUDGE
In the presence of:-
Mrs Kayugira for the plaintiff
June Nafula - Court Clerk