[2008] KEHC 2696 (KLR)
The court found that the plaintiffs were no longer the registered owners of the suit properties, as evidenced by the title documents on record. The 2nd plaintiff's title had already been transferred to the 2nd defendant, and there was no evidence of current ownership by the plaintiffs for the other parcel. Without...
Source-derived case information.
- Citation
- [2008] KEHC 2696 (KLR)
- Parties
- Plaintiff: Samuel Githaiga; Plaintiff: Ibrahim Kinyua Nganga; Defendant: Njeru M. Nyaga; Defendant: Nyaga Kivuti Patrick
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 110 of 2008
- Procedural Posture
- Election Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application for injunction refused
- Legal Topics
- Injunctions, Trespass, Ownership Disputes, Eviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Githaiga
Plaintiff
Ibrahim Kinyua Nganga
Plaintiff
Njeru M. Nyaga
Defendant
Nyaga Kivuti Patrick
Defendant
Procedural Posture
Election Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an injunction restraining the defendants from entering or remaining on the suit land.
- 2 Whether the plaintiffs have demonstrated ownership of the suit properties to justify injunctive relief.
- 3 Whether the defendants can lawfully evict the plaintiffs without a court order.
Ratio Decidendi
The court found that the plaintiffs were no longer the registered owners of the suit properties, as evidenced by the title documents on record. The 2nd plaintiff's title had already been transferred to the 2nd defendant, and there was no evidence of current ownership by the plaintiffs for the other parcel. Without proof of ownership, the plaintiffs could not sustain a claim for injunctive relief. However, the court clarified that the defendants could not lawfully evict the plaintiffs without first obtaining a court order for eviction. Consequently, the application for an injunction was refused, and no orders as to costs were made.
Court Disposition
application for injunction refused
Orders
- The application for injunction is refused.
- No orders as to costs.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Election Civil Suit 110 of 2008
1. Land and Environmental Law Division
2. Subject of main suit land
LR7752/226
LR7752/227
a) wrongful occupation
b) Destruction of boundary and beacon.
3. Application 14 March 2008
a) Injunction restraining defendant from entering or remaining on land.
4. Held
b) Injunction not to issue.
5. Case law – Nil
6. Advocate
F.N. Wamalwa of F.N. Wamalwa & Co. Advocates for the plaintiff/exparte/applicant – present
Defendants unrepresented - absent
SAMUEL GITHAIGA ………...……………………....……… 1ST PLAINTIFF
IBRAHIM KINYUA NGANGA ……………………......…… 2ND PLAINTIFF
VERSUS
NJERU M. NYAGA ……………………..……………….. 1ST DEFENDANT
NYAGA KIVUTI PATRICK ……………………................2ND DEFENDANT
RULING
APPLICATION 14 MARCH 2008
INJUNCTION
1PROCEDURE
1. Plaintiff 1 and 2 sued defendant 1 and 2 for an injunction on grounds that the two defendants Njeru M. Nyaga & Nyaga Kivuti Patrick had trespassed upon their property and destroyed their gate fence and beacon.
2. The two plaintiff filed a certificate of urgency whereby they also filed an application for injunction.
3. On 20 March 2008 they appeared before Wendoh J during the court vacation and were granted orders of status quo to be maintained. By now the two plaintiffs were able to use the police to stop further trespass. Though status quo “has not been disclosed by the judge, it is presumed the two defendants are not on the land.
4. On the 7 April 2008 an inter-parties hearing was to be heard. The said hearing came before this court but the defendants on being served were absent. I proceeded to hear the inter parties hearing under Order IXB r 3 (a) Civil Procedure Rules.
II: Application
5. The applications state that the respondents came and destroyed the boundary and beacon. On filing this suit there has been no challenge at all by the defendants. They pray that an injunction being granted.
III: Opinion
6. There is annexed a title deed and extract of the records on the certificate of title. On the face of title 7752/226 registered in the name of Peter Nganga Muiruri, the same was transferred to Ibrahim Kinyua Nganga the 2nd plaintiff herein. There is a change to Housing Finance Company of Kenya and thereafter eight years latter there is a transfer to Nyagah Kivuitu Patrick the 2nd defendant herein.
7. I therefore note that the said parcel of land title 7752/226 no longer belong to 2nd plaintiff. I do not see the title on my file for LR 7752/227 for the 1st plaintiff but I presume the situation must be the same. The two plaintiffs are no longer title owners of the suit premises.
8. The two defendants on the other hand are not entitled to evict the plaintiff without a lawful court order. They must file suit for eviction after the sale (if any) by a mortgage to them as buyers.
9. To this extend I would rule that no injunction should issue against the defendants provided that they have lawful court orders from the High Court of Kenya to evict the plaintiff on grounds of the property having been sold to them. The application for injunction refused
10. There will be no orders as to costs.
DATED THIS 8TH DAY OF APRIL 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
F.N. Wamalwa of F.N. Wamalwa & Co. Advocates for the plaintiff/exparte/applicant – present
Defendants unrepresented - absent