[2011] KEHC 2397 (KLR)
The court found that the plaintiffs had demonstrated, through uncontroverted evidence, that they are the registered owners of the suit property. Registration confers exclusive rights to possession and use, which the defendant unlawfully interfered with by preventing access and destroying the fence. Applying the...
Source-derived case information.
- Citation
- [2011] KEHC 2397 (KLR)
- Parties
- Plaintiff: Mohamed Abdulle Ahmed Alias Ahmad Muhamad Abdulle; Plaintiff: Amina Mohamed Ali both t/a Warts Enterprises; Defendant: Simon Mbugua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 118 of 2011
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for interlocutory injunction allowed.
- Legal Topics
- Ownership Disputes, Injunctive Relief, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Abdulle Ahmed Alias Ahmad Muhamad Abdulle
Plaintiff
Amina Mohamed Ali both t/a Warts Enterprises
Plaintiff
Simon Mbugua
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs are the registered owners of the suit property and entitled to exclusive possession.
- 2 Whether the defendant unlawfully interfered with the plaintiffs' possession and use of the land.
- 3 Whether the plaintiffs have met the threshold for grant of an interlocutory injunction.
Ratio Decidendi
The court found that the plaintiffs had demonstrated, through uncontroverted evidence, that they are the registered owners of the suit property. Registration confers exclusive rights to possession and use, which the defendant unlawfully interfered with by preventing access and destroying the fence. Applying the principles in Giella v Cassman Brown, the plaintiffs established a prima facie case with a likelihood of success, risk of irreparable harm, and the balance of convenience in their favor. The court therefore granted the interlocutory injunction as sought in prayers 3, 4, and 5 of the application.
Court Disposition
Application for interlocutory injunction allowed.
Orders
- An interlocutory injunction is granted restraining the defendant and his agents from interfering with the plaintiffs' possession, occupation, and use of L.R. No. 1251 Eastleigh Section 3, Nairobi, pending determination of the suit.
- The defendant is restrained from accessing or dealing with the suit property in any manner adverse to the plaintiffs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 118 OF 2011
MOHAMED ABDULLE AHMED AliasAHMAD MUHAMAD ABDULLE...............................................1ST PLAINTIFF
AMINA MOHAMED ALI both t/aWARTS ENTERPRISES...................................................................2ND PLAINTIFF
V E R S U S
SIMON MBUGUA.............................................................................................................................................DEFENDANT
R U L I N G
This motion was served on the Defendant who did not respond to it. The averments contained in the affidavit sworn by the 1st Plaintiff were therefore not controverted.
It is the case for the Plaintiffs that by Agreement for Sale (“MAA 3”) dated 1st February 2010 they bought the suit property, that is L.R. No. 1251 Eastleigh Section 3, Nairobi, from one Christopher Githinji Chege for KShs. 1,700,000/= which they fully paid. They obtained a Conveyance (“MAA4”) which was duly registered. There is Certificate of Postal Search (“MAA5”) showing they are the current registered owners of this freehold property which measures 0. 1116 acres.
The Plaintiffs took possession and erected a barbed wire fence around it. They wanted to develop the land by putting up residential –cum - commercial building and are in the process of seeking for finance from Housing Finance Company of Kenya. The Defendant, a former Member of Parliament for Kamukunji Constituency, brought people who stopped the Plaintiffs from accessing the land and pulled down the fence. They wanted to be paid a ransom of KShs.2,000,000/=. The 1st Defendant has sworn that the Defendant and these people have no claim to, or interest in, the suit land. The suit was filed for a permanent injunction, a declaration that the legal owners of the suit land and costs. With the suit was filed the present motion for an interlocutory injunction.
The Plaintiffs have demonstrated that they are the registered owners of the suit land. This registration confers the right to exclusive possession, occupation and use of the land. This right is being interfered with by the Defendant and his agents and this has to be restrained. Considering the principles in Giella –Vs- Cassman Brown & Co. Ltd [1973] EA 358, I allow the application in terms of prayers 3, 4 and 5.
DATED AND DELIVERED AT NAIROBITHIS 31ST DAY OF MAY 2011
A.O. MUCHELULE
J U D GE