[2014] KEHC 8166 (KLR)
The court found that the plaintiffs, as registered owners of the suit properties, had established a prima facie case with a probability of success. The defendants failed to respond or provide any evidence of ownership or authority to be on the land. The plaintiffs' evidence, including certificates of lease and...
Source-derived case information.
- Citation
- [2014] KEHC 8166 (KLR)
- Parties
- Plaintiff: Ngamau Mungai Muigai; Plaintiff: Ngamau Limited; Defendant: David Njenga; Defendant: Njoroge Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 266 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Temporary injunction granted in favour of the plaintiffs; costs in the cause.
- Judges
- CM Kariuki
- Legal Topics
- Temporary Injunctions, Trespass to Land, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngamau Mungai Muigai
Plaintiff
Ngamau Limited
Plaintiff
David Njenga
Defendant
Njoroge Kimani
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for the grant of a temporary injunction against the defendants.
- 2 Whether the plaintiffs are the registered owners of the suit properties and entitled to protection from trespass.
- 3 Whether the defendants' actions constituted unlawful trespass warranting injunctive relief.
Ratio Decidendi
The court found that the plaintiffs, as registered owners of the suit properties, had established a prima facie case with a probability of success. The defendants failed to respond or provide any evidence of ownership or authority to be on the land. The plaintiffs' evidence, including certificates of lease and affidavits, was uncontroverted. In the absence of any opposition, the court was satisfied that the plaintiffs were entitled to the protection of their property rights and granted a temporary injunction restraining the defendants from trespassing or dealing with the suit properties until the suit is heard and determined.
Court Disposition
Temporary injunction granted in favour of the plaintiffs; costs in the cause.
Orders
- The defendants, their servants, agents, assigns or any other person acting on their behalf are restrained by way of a temporary injunction from trespassing on L.R. NO. 18314 and L.R. NO.18316 or in any other manner dealing with the said land until this suit is heard and determined.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC CIVIL MISC. NO. 266 OF 2014
NGAMAU MUNGAI MUIGAI……………………………1ST PLAINTIFF
NGAMAU LIMITED ………………………………………2ND PLAINTIFF
VERSUS
DAVID NJENGA…………………………..……………1ST DEFENDANT
NJOROGE KIMANI …………………………………….2ND DEFENDANT
RULING
The plaintiffs by a Notice of Motion dated 10th March 2014 seek the following substantive order-:
That the Defendants/Respondents be and are hereby restrained by way of a temporary injunction by themselves, their servants, agents, assigns or any other person acting on their behalf from trespassing on the plaintiffs suit land namely L.R. NO. 18314 and L.R. NO.18316 or in any other manner dealing with the said land until this suit is heard and determined.
The application is premised on the grounds that the plaintiffs are the registered owners of the 2 suit properties and that the plaintiffs have built on the 2 parcels of land a slaughter house known as Kayole slaughter house. The plaintiffs state that the Defendants on or about 1/2/2014 trespassed onto the suit land at night and constructed small semi-permanent structures made of iron sheets without any notice to and/or authority of the plaintiffs.
The plaintiffs reported the matter of the trespass at Kayole police station on 7/2/2014 vide O.B. NO. 18/7/2/2014 and with the assistance of the police brought down the structures. The Defendants once again on 12/2/2014 at night trespassed onto the suit property and erected one stone/permanent kiosk which the plaintiffs only discovered in the morning and made a further report at Kayole police station vide O.B. NO. 28/12/2/2014. That the Defendants were summoned at the police station to produce any ownership documents but they failed to avail any documents inspite of promising to do so.
The plaintiffs have further filed a supporting affidavit sworn by the 1st plaintiff who is also a director of the 2nd plaintiff company. The plaintiffs have annexed copies of leases in respect of the 2 parcels of land marked “NMM1” and “NMM2” to illustrate the fact that they are the registered owners of the suit properties. Through the supporting affidavit the plaintiffs have verified the grounds set out on the body of the application in support of the application.
The plaintiffs application was certified urgent on 10/3/2014 and directed to be served on the Defendants for interpartes hearing on 24/3/2014. On the 24/3/2014 the application was listed before me for hearing and even through the application had been served on the Defendants as per the affidavit of service dated 20/3/2014 and filed in court on 21/3/2014 I opted to adjourn the hearing of the application to 10th June 2014 to afford the Defendants an opportunity to appear and be heard just in case they had been prevented by any reasonable cause from appearing. The Defendants were served with a mention notice for 10th June 2014 in place of a hearing notice as per the affidavit of service dated 5th May 2014.
On the 10th June 2014 the Defendants did not appear and neither had they filed any response to the plaintiffs application for injunction meaning that the plaintiffs application was unopposed. The court has reviewed the plaintiffs application and is satisfied that the plaintiffs are the registered owners of the suit properties having regard to the exhibited certificates of lease. Thus the plaintiffs by reason of being the registered owners would have a prima facie case with a probability of success as against the Defendants.
In the absence of any response from the Defendants, the plaintiffs assertions are uncontraverted and accordingly the court holds that the plaintiffs have demonstrated they have a prima facie case with a probability of success. The court in the premises grants an order of temporary injunction in favour of the plaintiffs as against the Defendants in terms of prayer (3) of the Notice of Motion and further directs that the costs of the application be in the cause.
Ruling dated signed and delivered this……17th………..day of…July…………….2014.
J.M. MUTUNGI
JUDGE
In the presence of:
………………………………………….For the Plaintiffs
………………………………………For the Defendants