[2017] KEELC 2370 (KLR)
The court found that while the Plaintiff is the registered proprietor of the suit land, the Defendants have been in occupation since the 1950s and have developed the property by constructing permanent shops. The Plaintiff did not sufficiently explain how the Defendants came to occupy the land or who constructed the...
Source-derived case information.
- Citation
- [2017] KEELC 2370 (KLR)
- Parties
- Plaintiff: Mwang’a Mutinda alias Mwang’a Mutinda Mundia; Defendant: Mawili Ndeleva; Defendant: Francis Mutua Mwau; Defendant: Kithome Kiili; Defendant: Nyamai Muange; Defendant: Mwongeli Muthama; Defendant: David Makosi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 219 of 2016
- Procedural Posture
- Environment and Land Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction dismissed; status quo to be maintained.
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Status Quo Orders, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwang’a Mutinda alias Mwang’a Mutinda Mundia
Plaintiff
Mawili Ndeleva
Defendant
Francis Mutua Mwau
Defendant
Kithome Kiili
Defendant
Nyamai Muange
Defendant
Mwongeli Muthama
Defendant
David Makosi
Defendant
Procedural Posture
Environment and Land Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for the grant of a temporary injunction against the Defendants regarding land parcel Nzaui/Kalamba/418.
- 2 Whether the balance of convenience favors the maintenance of the status quo pending the hearing and determination of the main suit.
- 3 Whether the Plaintiff will suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that while the Plaintiff is the registered proprietor of the suit land, the Defendants have been in occupation since the 1950s and have developed the property by constructing permanent shops. The Plaintiff did not sufficiently explain how the Defendants came to occupy the land or who constructed the shops. The court determined that the issue of the Defendants' entry and occupation is a substantive matter to be resolved at trial. Given the circumstances, and to prevent prejudice to either party, the court held that the most appropriate interim measure is to maintain the status quo as at the date of the ruling, rather than grant the injunctive orders sought by the Plaintiff....
Court Disposition
Application for temporary injunction dismissed; status quo to be maintained.
Orders
- The status quo prevailing as at the date of this Ruling to be maintained pending the hearing and determination of the suit.
- The costs of the Application to be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. SUIT NO. 219 OF 2016
MWANG’A MUTINDAalias
MWANG’A MUTINDA MUNDIA.....................................PLAINTIFF
VERSUS
MAWILI NDELEVA....................1ST DEFENDANT/RESPONDENT
FRANCIS MUTUA MWAU.......2ND DEFENDANT/RESPONDENT
KITHOME KIILI.........................3RD DEFENDANT/RESPONDENT
NYAMAI MUANGE....................4TH DEFENDANT/RESPONDENT
MWONGELI MUTHAMA.........5TH DEFENDANT/RESPONDENT
DAVID MAKOSI.......................6TH DEFENDANT/RESPONDENT
RULING
1. What is before me is the Plaintiff’s Application dated 5th December, 2016 seeking for the following orders:
a) That this Honourable Court be pleased to issue orders of temporary injunction restraining the Defendants/Respondents, their agents or any other persons claiming under them from selling, transferring, encroaching on and/or trespassing and/or interfering with the Plaintiff’s/Applicant’s use, enjoyment and possession of the property being land known as title number Nzaui/Kalamba/418 pending the hearing and determination of the main suit.
b) An order of temporary injunction do issue against the Defendants/Respondents, their agents and/or any other persons claiming under them restraining them from selling, alienating and/or disposing off and/or in any way interfering with land Parcel No. Nzaui/Kalamba/418 pending hearing and determination of the main suit.
2. The Application is based on the grounds that the Plaintiff legally acquired parcel of land known as Nzaui/Kalamba/418; that the Defendants have trespassed on the said land; that the Defendants have threatened to sub-divide the said land and that unless the suit land is preserved, the suit herein shall be rendered nugatory.
3. In response, the 1st Defendant deponed that they have been on the suit land since the 1950’s; that they have developed the suit land by putting up shops and that they have occupied the said land peacefully since then.
4. In the Further Affidavit, the Plaintiff deponed that there is no proof of how the Defendants came to own the suit land; that the Defendants have not had a peaceful possession of the suit land and that the injunctive orders should issue.
5. The Plaintiff’s advocate submitted that the Applicant has demonstrated that he is the registered proprietor of the suit land; that the Applicant has had the ownership of the land since 1976 and that pursuant to the provisions for sections 24, 25 and 26 of the Land Registration Act, he is entitled to the land.
6. The Defendants’ counsel submitted that the Applicant has not demonstrated how he will be prejudiced if the injunctive orders are not issued; that an injunctive order should not operate as an eviction order and that the Defendants have occupied the suit land since the 1950’s.
7. The Plaintiff is claiming the suit land on the basis of the Title Deed that was issued to him on 3rd August, 2016.
8. From the Certificate of Official Search, it would appear that the Plaintiff was registered as the proprietor of the suit land on 8th July, 1976.
9. The Plaintiff has not denied that indeed the suit property has shops which are permanent in nature.
10. Considering that the issue of how the Defendants entered the suit property will have to be ascertained at trial, and in view of the fact that the Plaintiff has not explained to the court how or who constructed the shops that are on the suit land, the most appropriate order to make in the circumstances of this case is for the maintenance of the status quo.
11. Indeed, given that it is the Plaintiff that is in possession of the Title Deed, it is unlikely that the Defendants will sub-divide the suit land or alienate it.
12. For those reasons, the court makes the following specific orders:
a) The status quo prevailing as at the date of this Ruling to be maintained pending the hearing and determination of the suit.
b) The costs of the Application to be in the cause.
DATED, DELIVERED AND SIGNED AT MACHAKOS THIS 16TH DAY OF JUNE, 2017.
O. A. ANGOTE
JUDGE