[2009] KEHC 3525 (KLR)
The court held that the plaintiff, as the registered proprietor of the suit premises, enjoys all rights conferred by the title until such time as the title is impeached by a court of law. The defendant's unilateral actions to repossess and allocate the land, without first challenging the title through a defence or...
Source-derived case information.
- Citation
- [2009] KEHC 3525 (KLR)
- Parties
- Plaintiff: Riziki Mwamwanda Chirima; Defendant: Kwale Town Council
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2006
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Injunction
- Outcome
- Plaintiff's application allowed in terms of prayer 2 and 3; costs awarded to plaintiff.
- Judges
- JK Sergon
- Legal Topics
- Injunctive Relief, Title to Land, Public Land Allocation, Unlawful Deprivation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Riziki Mwamwanda Chirima
Plaintiff
Kwale Town Council
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff, as registered proprietor, is entitled to injunctive relief against the defendant's interference with the suit premises.
- 2 Whether the defendant could lawfully repossess and allocate the suit land without first impeaching the plaintiff's title in court.
Ratio Decidendi
The court held that the plaintiff, as the registered proprietor of the suit premises, enjoys all rights conferred by the title until such time as the title is impeached by a court of law. The defendant's unilateral actions to repossess and allocate the land, without first challenging the title through a defence or counterclaim, were unlawful. The court emphasized that due process must be followed to impeach a title, and parties cannot take the law into their own hands. Since damages would not suffice to compensate for the loss of user, the plaintiff was entitled to injunctive relief restraining the defendant from further interference with the land. Costs were awarded to the plaintiff.
Court Disposition
Plaintiff's application allowed in terms of prayer 2 and 3; costs awarded to plaintiff.
Orders
- Injunction granted restraining the defendant from interfering with the plaintiff's use of the suit premises.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 65 of 2006
RIZIKI MWAMWANDA CHIRIMA…….....…………………..PLAINTIFF
VERSUS
KWALE TOWN CLOUNCIL……………………………..DEFENDANT
RULING
Pursuant to the provisions of order XXXIX rules 1,2,3 and 9 of the civil procedure rules, Riziki Mwamwanda Chirima took out the summons dated 5th April 2006 in which he sought for the following orders interalia:-
1That the plaintiff is the registered proprietor of the suit premises and has been unlawfully deprived of the use thereof.
2That damage cannot suffice to compensate the plaintiff for the loss of user of the land.
3Costs
Riziki Chirima swore two affidavits in support of the application. Kwale Town Council, the defendant herein filed the replying affidavit of Francis Nguta Kauli to resist the summons.
The plaintiff alleged that the defendant had unlawfully deprived him of the use of the parcel of land known as L.R.No. 5007/118 CR no. 34206 despite the fact that he is in possession of the certificate of title. The plaintiff annexed to the affidavit in support a copy of the aforesaid title issued on 27th October 2002. The plaintiff averred that in the month of august 2005, he put up a perimeter wall but the defendant’s town clerk led a group of people on 27-8-2005 whereupon they removed that fence. The plaintiff made a report to the police but assistance he was accorded. It is alleged that the Kwale Town council has now commenced putting up sheds on the plot without the plaintiff’s consent. Copies of the photographs are annexed to the plaintiff’s affidavit.
The defendant on its part stated that the suit premise was not available for allocation as it had been designed as a public utility land. It is alleged the land had been reserved for public toilets. The defendant admitted that the council resolved to have the land repossessed. The defendant annexed the minutes it passed to reposes the land. The defendant also admitted having put up sheds as alleged in the application. Those sheds were allocated to hawkers to trade therein.
I have considered the grounds set out on the face of the summons. I have also taken into account the facts deponed in the affidavits filed for and against the summons plus the annexures attached to those affidavits. It is not in dispute that the applicant is the registered owner of the suit premises. It is not also in dispute that the defendant has put up structures on the aforesaid land. It is said the land was set aside for putting up a public toilet. The defendant has claimed that the plot was grabbed by the plaintiff. It should be made clear that the allegations made by the defendant may be valid. But that is not the way to go about it. The title must first be impeached by a court of law. No person or corporation can decide on its own to revoke a title deed. That is the province of the high court. It is worst in this case in that the defendant has not filed a defence nor a counter claim to challenge the title. In short, the plaintiff enjoys the rights conferred by the aforesaid title until the same is removed. Parties should not be allowed to take short cuts like it happened in this case.
I find the summons to be well founded. I allow the same in terms of prayer 2 and 3. Costs shall be awarded to the plaintiff.
Dated and delivered this 6th day of May 2009
J. K. SERGON
JUDGE