[2011] KEHC 2247 (KLR)
The Plaintiff established a prima facie case as the registered proprietor of the suit land, supported by documentary evidence including a Certificate of Lease. The Defendants failed to respond or provide any legal or equitable basis for their actions. The court found that the Plaintiff's proprietary rights were...
Source-derived case information.
- Citation
- [2011] KEHC 2247 (KLR)
- Parties
- Plaintiff: Philemon Chamwada Otiende; Plaintiff: Patricia Muhati; Plaintiff: Pastor Pius Mbutsi; Defendant: Joseph Mathenge; Defendant: Joseph Munyiri; Defendant: John Muchiri; Defendant: Douglas Mathenge; Defendant: Mr. Mureithi; Defendant: John Ndirangu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 256 of 2010
- Procedural Posture
- Chamber Application / Ruling on Interlocutory Injunction
- Outcome
- Application for temporary injunction allowed.
- Legal Topics
- Ownership Disputes, Injunctive Relief, Registered Land, Quiet Enjoyment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philemon Chamwada Otiende
Plaintiff
Patricia Muhati
Plaintiff
Pastor Pius Mbutsi
Plaintiff
Joseph Mathenge
Defendant
Joseph Munyiri
Defendant
John Muchiri
Defendant
Douglas Mathenge
Defendant
Mr. Mureithi
Defendant
John Ndirangu
Defendant
Procedural Posture
Chamber Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff is the registered proprietor of Nairobi/Block 107/1128 and entitled to protection of its rights under the law.
- 2 Whether the Defendants should be restrained by temporary injunction from interfering with the suit land pending determination of the suit.
Ratio Decidendi
The Plaintiff established a prima facie case as the registered proprietor of the suit land, supported by documentary evidence including a Certificate of Lease. The Defendants failed to respond or provide any legal or equitable basis for their actions. The court found that the Plaintiff's proprietary rights were being interfered with and that, under the Registered Land Act, such rights are absolute and indefeasible. Applying the principles in Giella v Cassman Brown, the court determined that the Plaintiff was entitled to a temporary injunction to restrain the Defendants from further interference pending resolution of the main suit.
Court Disposition
Application for temporary injunction allowed.
Orders
- The Defendants, their contractors, agents and/or servants are restrained from interfering with, building on, subdividing, digging trenches, selling, disposing of or in any other way dealing with Nairobi/Block 107/1128 pending determination of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 256 OF 2010
PHILEMON CHAMWADA OTIENDE..........................................................................1ST PLAINTIFF
PATRICIA MUHATI......................................................................................................2ND PLAINTIFF
PASTOR PIUS MBUTSI..............................................................................................3RD PLAINTIFF
(Suing as the Registered Trusteesand representatives of Gethsemane Ministry)
V E R S U S
JOSEPH MATHENGE...............................................................................................1ST DEFENDANT
JOSEPH MUNYIRI....................................................................................................2ND DEFENDANT
JOHN MUCHIRI........................................................................................................3RD DEFENDANT
DOUGLAS MATHENGE............................................................................................4TH DEFENDANT
MR. MUREITHI..........................................................................................................5TH DEFENDANT
JOHN NDIRANGU.....................................................................................................6TH DEFENDANT
R U L I N G
The Plaintiff church has shown certificate of registration (“PCO 1”) showing it is registered as a society. It brought this suit through its trustees to say it is the registered proprietor of Nairobi/Block 107/1128, the suit land, and annexed a Certificate of Lease (“PCO2A”) issued on 23rd November 2007. It bought the suit land from the previous registered owners Esther Mwangi, Andrew Maina and Samuel Kariuki (“PCO 2C”) and have been paying rates to the City Council of Nairobi. While preparing to develop the property, the Defendants came onto the same to also begin to develop and pulled down and damages structures thereon. The suit was filed for a declaration that the Plaintiff was legal owner of the suit land, and for a permanent injunction to restrain the Defendants who were making a claim of ownership over the same property. With the suit was filed a chamber application for a temporary injunction to restrain the Defendants, their contractors, agents and/or servants from interfering with, building on, subdividing, digging trenches, selling, disposing of or in any other way dealing with the suit land. The application was supported by the affidavit sworn by Philemon Chamwada Otiende, a trustee of the church.
The evidence placed on record by the Plaintiff was not controverted. The application was served on the Defendants who made no response. I find that the Plaintiff has shown that it is the prima facie registered proprietor of the suit land which the Defendants are interfering with without any legal or equitable basis. A registered proprietor of land is, under sections 27 and 28 of the Registered Land Act (Cap. 300), entitled to absolute and indefeasible claim to the same. Such claim includes the right to possess, occupy, use and develop. It further includes the right to quiet enjoyment. This is the claim that the Plaintiff has shown the Defendants are interfering with. They have to be restrained as the resolution of the dispute is awaited.
On basis of Giella –Vs- Cassman Brown & Co. Ltd [1973] EA 358, I allow the application dated 17th August 2010 in terms of prayers 3, 4 and 5.
DATED AND DELIVERED AT NAIROBITHIS 9TH DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E