[2017] KEELC 3428 (KLR)
The court found that the applicants, acting under a valid power of attorney from the registered owner, had demonstrated a prima facie case with a probability of success. There was evidence of interference with the suit lands by the respondents, as shown by the actions of the second respondent's agents and the...
Source-derived case information.
- Citation
- [2017] KEELC 3428 (KLR)
- Parties
- Applicant: Rwamba Waweru Karanja (suing through his attorney Maurice Ngugi Karanja & Stephen Karanja Waweru); Respondent: Ole Koikai; Respondent: DHL Housing Cooperative Society Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 988 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed. Temporary injunction granted.
- Legal Topics
- Injunctive Relief, Land Ownership, Boundary Disputes, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rwamba Waweru Karanja (suing through his attorney Maurice Ngugi Karanja & Stephen Karanja Waweru)
Applicant
Ole Koikai
Respondent
DHL Housing Cooperative Society Ltd
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants have established a prima facie case with a probability of success to warrant the grant of a temporary injunction.
- 2 Whether there is sufficient evidence of interference with the suit lands by the respondents.
- 3 Whether preservation of the suit lands is necessary pending determination of the main suit.
Ratio Decidendi
The court found that the applicants, acting under a valid power of attorney from the registered owner, had demonstrated a prima facie case with a probability of success. There was evidence of interference with the suit lands by the respondents, as shown by the actions of the second respondent's agents and the issuance of summons by the land registrar. The second respondent's admission of a possible boundary dispute further supported the applicants' position. The court held that, to preserve the subject matter of the dispute and prevent possible irreparable harm, it was necessary to grant a temporary injunction restraining the respondents from interfering with the suit lands pending the...
Court Disposition
Application allowed. Temporary injunction granted.
Orders
- The applicants' Notice of Motion dated 8th October 2015 is allowed in terms of prayers (3) and (4).
- Respondents are restrained from interfering with the suit lands pending determination of the suit.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI
ELC NO. 988 OF 2015
RWAMBA WAWERU KARANJA (Suing Through His Attorney
MAURICE NGUGI KARANJA &
STEPHEN KARANJA WAWERU…….……………..….…APPLICANT
=VERSUS=
OLE KOIKAI ………………….............…..……......1ST RESPONDENT
DHL HOUSING COOPERATIVE SOCIETY LTD….......RESPONDENT
RULING.
1. The two applicants namely Maurice Ngugi Karanja andStephen Karanja Waweru are holders of a Power of Attorney donated by the Plaintiff Rwamba Waweru Karanja who is their brother. The Plaintiff is the registered owner of L.R.No. Kajiado/Kisaju 6736, 6737 &6738(suit lands).The applicants brought a suit against the two Respondents in which they sought among other prayers, a permanent injunction restraining the Respondents from interfering with the suit lands. The applicants contemporaneously filed a Notice of Motion in which they seek orders restraining the Respondents from interfering with the suit lands.
2. The first Respondent who was duly served with all pleadings neither entered appearance nor filed any reply to the applicants’ application. It is only the second Respondent who responded to the applicants’ application.
APPLICANTS’ CONTENTION
3. The applicants contend that their brother acquired the suit lands in the year 2000. That the suit lands were subdivisions of LR.No.Kajiado/Kisaju/1991. That their brother is currently based at the U.S.A. That sometime in 2005,the Respondent started making attempts of interfering with the suit lands.
4. The second Respondent through its agents claimed that they had purchased land from the first Respondent. The second Respondent’s agents went to the Land Registry at Kajiado where they caused the Registrar to issue summons requiring the applicants to be available at the suit lands. They duly obeyed the summons but no one appeared at the time indicated. They left. The Second Respondent’s agents have since been interfering with the suit lands. They now fear that the Respondents might even proceed to sell the suit lands to their detriment unless restrained by the Court.
SECOND RESPONDENT’S CONTENTION.
5. The second Respondent contends that it owns LRNo. Kajiado/Kisaju/1747 which it acquired in 2012. That the land is adjacent to the one owned by the applicant and that there is really no interference with the suit lands. That there could only be an issue of boundary dispute which can be sorted out by sending a surveyor who will point out beacons. That the second Respondent’s members are desirous of having their land subdivided and given to them.
ANALYSIS
6. This is an application seeking for a temporary injunction pending hearing and determination of the suit. The principles for grant of a temporary injunction are now well settled. They are clear as was set out in the celebrated case of Giella VsCassman Brown & Co.Ltd [1973] EA 358.
7. There is no contention that the plaintiff is the registered owner of the suit lands.The second Respondent has indicated that it owns land adjacent to the suit lands. The second Respondent has impliedly admitted that if there could be any problem, it only relates to a boundary dispute. This is an admission that it does not know the boundaries of its land. The applicants are contending that the Respondents are interfering with the suit lands.
8. The only issue for determination in this matter is whether they are entitled to injunctive orders. One of the conditions for grant of an injunction is that an applicant has to demonstrate that he has a prima facie case with probability of success. The applicants in this case have demonstrated that the suit lands belong to their brother who has donated a power of attorney to them. They have demonstrated that there is some interference with the suit lands. This is why there were summons by the land Registrar. Before the dispute is resolved, there has to be an order preserving the properties.
9. The second Respondent has indicated that it intends to subdivide its land to its members. The second Respondent should not be allowed to do so as there is a dispute touching on the suit lands. The applicants have demonstrated that they have a prima facie case with probability of success.
10. Counsel for the applicants and the Second Respondents have raised issues on ownership. There is no one contesting over another’s ownership. The dispute is on interference with the suit lands. Whether the second Respondent’s land exists or not is not an issue before me at this stage. What I have to decide is whether the applicant has demonstrated a prima facie case and a prima facie case does not necessarily mean one which will ultimately succeed. I therefore find that the applicants have demonstrated that they have a prima facie case with probability of success.
CONCLUSION
11. For the reasons given hereinabove, I find that the applicant’s Notice of Motion dated 8th October 2015, is well founded. The same is allowed in terms of prayers (3) and (4).
Dated, Signed, and delivered at Nairobi this 6thday of February 2017.
E.O.OBAGA
JUDGE
In the presence of:-
M/s Mathenge for Mr Irungu for the applicant
M/s Mathenge for Mr Gitonga for 2nd Respondent
Hilda: Court Assistant
E.O.OBAGA
JUDGE