[2012] KEHC 2741 (KLR)
The court found that the Plaintiffs had established a prima facie case by producing documentary evidence of ownership of the suit property, including a registered indenture and sub-division approval. The Defendants failed to provide any justification for their actions or to challenge the Plaintiffs' title. The court...
Source-derived case information.
- Citation
- [2012] KEHC 2741 (KLR)
- Parties
- Plaintiff: Njoroge Mbugua; Plaintiff: Esther Wanjiru Gacigo; Defendant: Andrew Macharia; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 31 of 2012
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- temporary injunction granted in favour of the Plaintiffs; costs to the Plaintiffs
- Judges
- REA Ougo
- Legal Topics
- Injunctive Relief, Land Ownership, Trespass, Eviction, Title Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoroge Mbugua
Plaintiff
Esther Wanjiru Gacigo
Plaintiff
Andrew Macharia
Defendant
City Council of Nairobi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiffs have established a prima facie case with a probability of success to warrant the grant of a temporary injunction.
- 2 Whether the Plaintiffs are likely to suffer irreparable harm if the injunction is not granted.
- 3 Where the balance of convenience lies between the parties.
Ratio Decidendi
The court found that the Plaintiffs had established a prima facie case by producing documentary evidence of ownership of the suit property, including a registered indenture and sub-division approval. The Defendants failed to provide any justification for their actions or to challenge the Plaintiffs' title. The court held that the Plaintiffs stood to suffer irreparable harm through loss of possession and potential eviction, which could not be adequately compensated by damages. The balance of convenience favored maintaining the status quo and restraining the Defendants from interfering with the Plaintiffs' property rights pending the determination of the suit. Accordingly, the court granted...
Court Disposition
temporary injunction granted in favour of the Plaintiffs; costs to the Plaintiffs
Orders
- A temporary injunction is granted restraining the Defendants, their servants and/or agents from interfering with the Plaintiffs' rights of possession, letting, encroaching on, entering, using, trespassing, alienating, or making any further constructions on L.R No. 36/V/16 in No. 6A Section 1 Eastleigh or otherwise...
- Costs of the application are awarded to the Plaintiffs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
ENVIRONMENTAL & LAND CASE 31 OF 2012
NJOROGE MBUGUA...............................................................................................................1ST PLAINITFF
ESTHER WANJIRU GACIGO.................................................................................................2ND PLAINTIFF
VERSUS
ANDREW MACHARIA......................................................................................................1ST DEFENDANT
CITY COUNCIL OF NAIROBI..........................................................................................2ND DEFENDANT
RULING
By a Notice of Motion application dated 19/1/2012, the Plaintiffs seek an orders that;
1. A temporary injunction be granted restraining the Defendants whether by themselves, their servants and/or agents or otherwise howsoever from doing the following acts or any of them, that is to say, from interfering with rights of possession of the Plaintiffs, letting, encroaching on, entering, using, trespassing, alienating, making any or any further constructions on the Plaintiff’s property L.R No. 36/V/16 in No. 6A Section 1 Eastleigh or otherwise howsoever, interfering with the Plaintiffs’ ownership of L.R No. 36/V/16 IN No. 6A Section 1 Eastleigh pending the hearing and final determination of this suit.
2. That costs of this application be provided for.
The application is premised on grounds that the Plaintiffs, together with others who are deceased are owners of the said parcel of land, and that the Defendants have encroached on the land and have erected a Bill Board with notices for the residents including the Plaintiffs to vacate the property, to pave way for the construction of a Social Hall.
The application is supported by a Supporting Affidavit dated 19/1/2012, sworn by 2nd Plaintiff. The 2nd Plaintiff depones that the Plaintiffs together with others, now deceased are owners of L.R No. 36/V/16 IN No. 6A Section 1 Eastleighthrough an indenture dated 30/12/1970 registered in Volume N5 Folio 304/9(suit property).That the Plaintiffs obtained approval from the 2nd Defendant to sub-divide the property which approval was granted on 25/7/1991. She deponed further that towards end of 2011 beginning of 2012, the 2nd Defendant erected a Bill Board containing notices asking residents, who include the Plaintiffs, to immediately vacate the property as the same is a proposed site for a Social Hall. The Plaintiffs pray that unless restrained by this Honorable Court, the Defendants will continue with their wrongful acts that of invading and evicting them from their property.
A Replying Affidavit dated 21/2/2012 sworn by Kich John Ayiecho was filed on 22/2/2012. The deponent stated that he is a Chief Valuer of the Respondent. The Replying Affidavit has no averments other than denials of the contents of the Plaintiffs’ application.
I have considered oral submissions made by the Plaintiffs’ advocate. The Defendants’ advocate failed to attend the hearing though served. The Applicants have annexed a copy of an indenture registered on 16/6/1971 and a copy of sub-division of the property in their Affidavit which prove that they own the property. The defendants’ actions on the suit have not been justified and neither does the Replying Affidavit shade light on why the notice was put up. The Plaintiffs have demonstrated that they have prima facie case with a probability of success. They have shown that they stand to suffer irreparable loss should the Defendants continue with their unjustified acts. The balance of convenience tilts in their favour.
I therefore grant prayer 3, that a temporary injunction be granted restraining the Defendants whether by themselves, their servants and/or agents or otherwise howsoever from doing the following acts or any of them, that is to say, from interfering with rights of possession of the Plaintiffs, letting, encroaching on, entering, using, trespassing, alienating, making any or any further constructions on the Plaintiff’s property L.R No. 36/V/16 in No. 6A Section 1 Eastleigh or otherwise howsoever, interfering with the Plaintiffs’ ownership of L.R No. 36/V/16 IN No. 6A Section 1 Eastleigh pending the hearing and final determination of this suit. Costs to the Plaintiff.
Orders accordingly.
Dated, signed and delivered this 19thday of July 2012
R. OUGO
JUDGE
In the Presence of:-
………………………………………For the Applicants
……………………………………..For the Respondents
KabiruCourt Clerk