[2017] KEELC 3543 (KLR)
The court found that the central issue is the ownership of the land in dispute, regardless of the plot numbers assigned by the parties. Since the plaintiffs allege interference by the proposed defendants and the ground claimed may be the same, it is appropriate to enjoin all parties who may have an interest in the...
Source-derived case information.
- Citation
- [2017] KEELC 3543 (KLR)
- Parties
- Plaintiff: Robert Maina Wambugu; Plaintiff: John B. Githiori Njogo; Defendant: The County Government of Narok; Defendant: Mathew Kiriago Akama; Defendant: Tooto Ole Sopia; Defendant: Letaiyan Ole Dikirr; Defendant: Salau Ole Karkar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 48 of 2014
- Procedural Posture
- Land Dispute / Ruling on Application to Enjoin Parties and for Injunction
- Outcome
- Application allowed. Plaintiffs granted leave to amend plaint to enjoin proposed defendants. Status quo to be maintained pending hearing and determination. Costs in the cause.
- Judges
- MA Silau
- Legal Topics
- Joinder of Parties, Injunctive Relief, Ownership Dispute, Allotment Letters
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Maina Wambugu
Plaintiff
John B. Githiori Njogo
Plaintiff
The County Government of Narok
Defendant
Mathew Kiriago Akama
Defendant
Tooto Ole Sopia
Defendant
Letaiyan Ole Dikirr
Defendant
Salau Ole Karkar
Defendant
Procedural Posture
Land Dispute / Ruling on Application to Enjoin Parties and for Injunction
Legal Issues
- 1 Whether the proposed defendants should be enjoined as parties to the suit.
- 2 Whether an injunction should issue to preserve the status quo pending hearing and determination of the suit.
- 3 Whether the plaintiffs have established a sufficient nexus between their claim and the interests of the proposed defendants.
Ratio Decidendi
The court found that the central issue is the ownership of the land in dispute, regardless of the plot numbers assigned by the parties. Since the plaintiffs allege interference by the proposed defendants and the ground claimed may be the same, it is appropriate to enjoin all parties who may have an interest in the subject matter for a comprehensive determination. The court further held that maintaining the status quo is necessary to prevent further interference or development on the disputed property until the case is heard and determined. The plaintiffs are granted leave to amend their plaint to include the proposed defendants, and all parties are restrained from dealing with or...
Court Disposition
Application allowed. Plaintiffs granted leave to amend plaint to enjoin proposed defendants. Status quo to be maintained pending hearing and determination. Costs in the cause.
Orders
- Leave granted to plaintiffs to amend plaint within 14 days to enjoin Tooto Ole Sopia, Letaiyan Ole Dikirr, and Salau Ole Karkar as defendants.
- Status quo to be maintained until the case is heard and determined.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 48 OF 2014
ROBERT MAINA WAMBUGU ……..............................……..…..1ST PLAINTIFF
JOHN B. GITHIORI NJOGO…………...............................….……2ND PLAINTIFF
VERSUS
THE COUNTY GOVERNMENT OF NAROK……….…………….1ST DEFENDANT
MATHEW KIRIAGO AKAMA ………................................…..….2ND DEFENDANT
AND
TOOTO OLE SOPIA……….................................…3R PROPOSED DEFENDANT
LETAIYAN OLE DIKIRR……....................................4TH PROPOSED DEFENDANT
SALAU OLE KARKAR….......................................5TH PROPOSED DEFENDANT
RULING
(application to enjoin parties as defendants; suit over land which is also claimed by the proposed defendants; application allowed; status quo ordered to be maintained pending hearing of suit).
1. This suit was commenced by way of plaint on 18 February 2014. It is the plaintiffs’ case that in April 2009, they applied to the 1st defendant's predecessor, the Town Council of Narok, to be allotted the parcel of land known as Plot No. 825 Block II situated in Narok Town. It is pleaded that the plaintiffs' application was approved and they were issued with an allotment letter dated 14 May 2009 and they paid the monies that they were asked to pay. It is averred that they then took possession of the land, fenced it and commenced the process of obtaining title. It is pleaded that sometime in February 2014, the County Government of Narok without any justifiable reason, purported to subdivide the land into 9 parcels and allocated them to unknown third parties. It is pleaded that the unknown 3rd parties have now removed the plaintiffs' fence on the suit property and intend to commence construction. In the suit, the plaintiffs has sought orders of permanent injunction against the defendant from interfering with their quiet enjoyment of the suit land and a declaration that the plaintiffs are the owners of the suit land.
2. Together with the plaint, the plaintiffs filed an application for interlocutory injunction seeking to have the County Government of Narok restrained from interfering with the suit land pending hearing and determination of the case.
3. Vide an application dated 22 April 2015, the plaintiffs filed a motion to enjoin one Mathew Kiriago Akama to this suit and for injunction to restrain him from interfering with the suit land pending hearing of the case. It was stated inter alia that the said Mr. Akama has attempted to forcibly enter into the suit premises claiming that he purchased it from the County Government of Narok. The application to enjoin the said Mathew Kiriago Akama was allowed and he is now the 2nd defendant in this suit. The 2nd defendant entered appearance and filed defence. He pleaded inter alia that he purchased a plot No. 998 Block 11 from one Leteyian Ole Dikirr who had been allotted the land by the Town Council of Narok. He has pleaded that the plot No. 825 is no longer in existence as it was subdivided and among the portions that ensued is the Plot No. 998. He also filed a counterclaim for orders that the plaintiffs be permanently restrained from the said Plot No. 998.
4. Through an application dated 9 June 2015, the plaintiffs have now applied to further amend their plaint to include three other parties, that is, Tooto Ole Sopia, Letaiyan Dikirr and Salau Ole Dikirr as defendants. It is averred that the three proposed defendants have also made attempts to make entry into the property claimed by the plaintiffs.
5. The application is opposed by the 2nd defendant and the proposed new defendants. In his replying affidavit, the 2nd defendant has averred inter alia that there is no nexus between the proposed new defendants and the plot in dispute.
6. The proposed defendants on their part have contended, through a replying affidavit sworn by Tooto Ole Sopia, that Tooto is the bona fide owner of the Plots identified as Plot No. 999, 1002, 1003, and 1007 Block 11 Stadium Ward in Narok. He has stated that he purchased the same from one Tumalel Ole Partop in December 2012. He has pointed out that the plaintiffs have not challenged the interest of the said Tumalel Ole Partop. It is also his view that the plaintiffs have not established the relationship between what they claim and the Plot numbers 999, 1002, 1003, and 1007.
7. I have considered the application.
8. The case of the plaintiffs is over a Plot described as Plot No. 825 Block II. They wish to sue the defendants because they have interfered with their possession of it. I do note that the 2nd defendant and the proposed 3rd to 5th defendants argue that they own plots which bear different numbers. To me this is immaterial so long as the ground claimed is the same. What needs to be determined in this suit, is who should own the soil where the land in dispute lies, whether identified as Plot No. 825 or by any other description. Of course if it is later found out that the plots claimed by the plaintiffs and defendants lie on different ground, then the plaintiff will not have a cause of action against the defendants. But I must allow him the opportunity to plead his case as he wishes and to enjoin all parties whom he feels are necessary for the proper determination of their case.
9. It is for the above reasons that I allow the application to enjoin the proposed 3rd to 5th defendants and I do grant leave to the plaintiffs to proceed and amend their plaint within the next 14 days.
10. On the prayers for injunction, it is my order that the status quo prevailing be maintained until this case is heard and determined. I further order that no party should enter into any dealings in relation to the property and no party should make any structures or developments in the disputed property.
10. On costs, the same shall be in the cause.
11. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 22nd day of February 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :
No appearance for Kimondo & Gacoka for plaintiff/applicant.
Mr. Alao holding brief for Mr. Otieno for proposed defendants
Mr. Ole Yenko for 1st defendant- absent
Mr. Ochego Onduso for 2nd defendant :absent
Court Assistant: Nelima
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU