[2008] KEHC 1850 (KLR)
The court found that the plaintiffs have raised a triable issue regarding their claim of adverse possession, having alleged continuous occupation of the suit land for 40 years. To preserve the status quo and prevent irreparable harm pending the hearing and determination of the suit, the court granted an...
Source-derived case information.
- Citation
- [2008] KEHC 1850 (KLR)
- Parties
- Plaintiff: Peter Wachria Njoroge; Plaintiff: Michael Gachiri Njoroge; Plaintiff: James Wachira Wambugu; Plaintiff: Julius Kirutu Gachiri; Defendant: Nancy Wairimu Kibui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1883 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted in favour of the plaintiffs; costs awarded to the plaintiffs pending determination of the suit.
- Legal Topics
- Adverse Possession, Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Wachria Njoroge
Plaintiff
Michael Gachiri Njoroge
Plaintiff
James Wachira Wambugu
Plaintiff
Julius Kirutu Gachiri
Plaintiff
Nancy Wairimu Kibui
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for an injunction restraining the defendant from interfering with their possession of the suit land pending determination of the suit.
- 2 Whether the plaintiffs' claim for adverse possession is maintainable given the period of their alleged occupation and the age of the defendant's title.
Ratio Decidendi
The court found that the plaintiffs have raised a triable issue regarding their claim of adverse possession, having alleged continuous occupation of the suit land for 40 years. To preserve the status quo and prevent irreparable harm pending the hearing and determination of the suit, the court granted an interlocutory injunction restraining the defendant from evicting the plaintiffs or interfering with their possession. The court emphasized that the substantive issue of adverse possession would be determined at trial, but interim protection was warranted to avoid prejudicing the plaintiffs' claim.
Court Disposition
Interlocutory injunction granted in favour of the plaintiffs; costs awarded to the plaintiffs pending determination of the suit.
Orders
- The defendant is restrained from cutting, demolishing properties, or interfering with the quiet possession of the four plaintiffs on the suit land pending determination of the suit.
- Costs of the application are awarded to the plaintiffs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1883 of 2007
PETER WACHRIA NJOROGE ……………………… 1ST PLAINTIFF
MICHAEL GACHIRI NJOROGE ……………………… 2ND PLAINTIFF
JAMES WACHIRA WAMBUGU ………………………. 3RD PLAINTIFF
JULIUS KIRUTU GACHIRI ….………………………. 4TH PLAINTIFF
VERSUS
NANCY WAIRIMU KIBUI …..…………………………….. DEFENDANT
RULING
APPLICATION FOR AN INJUCNTION
DATED 24 AUGUST 2006
I: Background
1. There are 4 plaintiffs in this matter. They filed the Originating Summons in this court on 18 May 2006 seeking prayer for adverse possession to Land LR. Chinga Kiaguthu/399.
2. On the 7 September 2006 the plaintiff filed an application for injunction claiming that the defendant Nancy Wairimu Kibui was in the process of evicting them from the suit land. They prayed that she be restrained till the finalization of this matter.
3. In reply the defendant stated through her advocate that there is no claim for adverse possession as when she had bought the property the plaintiffs had not been on the land for 12 years as her title was not 12 years old.
4. The defendant in reply stated that they had been in possession of the suit premises for 40 years and are entitled to possession.
II: Finding
5. The plaintiffs wish to be heard on the point of ownership of the property more so by way of adverse possession. For this to occur the said parties require to be heard on the said issue and the status on the suit land be marked.
6. I accordingly allow the prayers for an injunction restraining the defendant from cutting, demolition of properties and or interfering with the quite possession of the four plaintiffs occupation.
7. I award costs to the four plaintiffs pending the determination of this suit.
DATED THIS 12TH DAY OF JUNE 2008 AT NAIROBI
M.A. ANG’AWA
JUDGE
J. Anyoka hodling brief instructed by M/s K. Mogeni & Co. Advocates for the plaintiff/applicant – present
J.W. Ngata instructed by Gaita & Co. Advocates for th defendant/respondent - present