[2005] KEHC 2423 (KLR)
The court found that the plaintiff's application for a temporary injunction was untenable because the 3rd defendant was already in occupation of the suit land, had constructed buildings, and his family was residing there. The relief sought by the plaintiff was to restrain acts that had already occurred, which is not...
Source-derived case information.
- Citation
- [2005] KEHC 2423 (KLR)
- Parties
- Plaintiff: Rajni Kant Nathoo; Defendant: Edward Nthuli; Defendant: Paul Githaiga Ng'ang'a; Defendant: Ramji Manji Shamji; Defendant: Commissioner of Lands; Defendant: Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1196 of 2004
- Procedural Posture
- Civil Case / Judgment on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Land Allocation Disputes, Injunctive Relief, Trespass, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajni Kant Nathoo
Plaintiff
Edward Nthuli
Defendant
Paul Githaiga Ng'ang'a
Defendant
Ramji Manji Shamji
Defendant
Commissioner of Lands
Defendant
Honourable Attorney General
Defendant
Procedural Posture
Civil Case / Judgment on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the 3rd defendant from entering or interfering with the suit land.
- 2 Whether the court can grant an injunction to restrain acts that have already occurred, specifically where the 3rd defendant is already in occupation and has constructed buildings on the land.
Ratio Decidendi
The court found that the plaintiff's application for a temporary injunction was untenable because the 3rd defendant was already in occupation of the suit land, had constructed buildings, and his family was residing there. The relief sought by the plaintiff was to restrain acts that had already occurred, which is not permissible in law. Injunctive relief is intended to prevent future harm, not to reverse completed acts or dispossess a party already in occupation. Consequently, the court dismissed the application, holding that the orders sought could not be granted in the circumstances.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for injunction is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 1196 of 2004
RAJNI KANT NATHOO……………………………………...PLAINTIFF
VERSUS
EDWARD NTHULI……………..…………….…….1ST DEFENDANT
PAUL GITHAIGA NG’ANG’A……………….…….2ND DEFENDANT
RAMJI MANJI SHAMJI…………..……….……3RD DEFENDANT
COMMISSIONER OF LANDS…………….……..4TH DEFENDANT
HONOURABLE ATTORNEY GENERAL….……5TH DEFENDANT
JUDGMENT
In a plaint filed on 21st December 2004, the plaintiff avers that he was allotted LR NO.209/4537 by the Commissioner of Land on 2nd November 1983 and was issued with a Grant LR NO.38119. He is the registered proprietor on 24TH October 2004 he discovered that the 3rd Defendant had trespassed onto his said property and commenced construction of buildings. The 3rd Defendant also claims that he was allotted the same by the Commissioner of Lands.
He filed this suit seeking a declaration that the purported grant of the suit property by the Commissioner of Lands was fraudulently and unlawful and a mandatory injunction against the 3rd Defendant to demolish all the buildings and structures erected on the suit property. Simultaneously with the filing of the plaint, the plaintiff filed a Chamber Summons application under Certificate of Urgency wherein he sought orders that the 3rd Defendant be ordered to vacated and remove all his properties and equipment from the suit land and further that he be restrained from entering upon or in any way interfering with the plaintiff’s right of occupation of the suit land. The application is supported by an affidavit sworn on 5th November 2004 where he basically swears to the facts averred in the plaint namely that he is the registered proprietor of the suit land and that the 3rd Defendant has trespassed and started constructing building on the same.
The application is opposed by Mr. Gachiri on behalf of the 3rd Defendant who submitted that the orders sought are not capable of being granted. The plaintiff seeks a temporary injunction to restrain the 3rd Defendant from entering the suit premises but the 3rd Defendant is already in the suit land and he has put several structures and his family is already living there. That this suit was brought after the construction was complete. The order sought if granted will cause eviction of the 3rd Defendant.
That the 3rd Defendant is already on the suit land is admitted by the plaintiff because some of the orders sought is for the 3rd Defendant to be ordered to remove his property from the suit land and demolish structures he has already erected there. That being the position injunction relief cannot issue to restrain what has already taken place.
The orders sought therefore are not tenable and the application ought to be dismissed.
It is dismissed with costs.
Dated at Nairobi this 19th day of May 2005.
J.L.A. OSIEMO JUDGE