[2018] KEELC 2303 (KLR)
The court held that the plaintiff failed to establish a sufficient basis to compel the defendant to disclose the identity of the persons occupying the suit property. The court reasoned that it is the plaintiff's responsibility to know and identify the persons in occupation, especially when seeking injunctive and...
Source-derived case information.
- Citation
- [2018] KEELC 2303 (KLR)
- Parties
- Plaintiff: Samuel Oluoch Helu; Defendant: National Social Security Fund
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1285 of 2014
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- BM Eboso
- Legal Topics
- Disclosure of Occupant Identity, Interlocutory Applications, Burden of Proof, Injunctions, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Oluoch Helu
Plaintiff
National Social Security Fund
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the defendant should be compelled to disclose the identity of the persons occupying the suit property.
- 2 Whether the plaintiff has established sufficient grounds for the orders sought in the Notice of Motion.
Ratio Decidendi
The court held that the plaintiff failed to establish a sufficient basis to compel the defendant to disclose the identity of the persons occupying the suit property. The court reasoned that it is the plaintiff's responsibility to know and identify the persons in occupation, especially when seeking injunctive and eviction relief. Shifting this burden to the defendant, in the absence of clear evidence or legal obligation, would be unreasonable. As the application did not meet the threshold for granting mandatory interlocutory orders, the Notice of Motion was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 17/10/14 is dismissed for lack of merit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CIVIL SUIT NO. 1285 OF 2014
SAMUEL OLUOCH HELU....................................PLAINTIFF
- VERSUS-
NATIONAL SOCIAL SECURITY FUND..........DEFENDANT
RULING
1. On 17/10/2014 the plaintiff brought a Notice of Motion seeking the following orders:-
a. That this application be certified urgent and service thereof be dispensed with in the first instance and the same be heard exparte.
b. That this Honourable Court be pleased to issue an order compelling the defendants to reveal and disclose the true identity of the person occupying the suit property being Title Number 97/Tassia Estate (plot No. 597, 598 & 600). Embakasi, Nairobi, pending the hearing and determination of this application interpartes
c. The Court be pleased to issue summon to the Managing trustee of the defendants or, its agents, servant, surrogates and assignees to appear in court and shed light as to the identity of the person in possession of the suit property being Title Number LR Number 97/Tassia Estate (Plot No 597,598 & 600) Embakasi, Nairobi pending the hearing and determination of this suit interpartes.
d. That costs of this application be provided for
2. The plaintiff contended that efforts by him to identify the persons currently in possession of Land Reference Number 97/Tassia Estate (Plot No 597, 598 and 600 Embakasi, Nairobi, have been futile. He added that the application was necessitated by the need to join as defendants the persons who are currently in occupation of the suit property. The application was not opposed.
3. I have considered the tenor and import of the Notice of Motion. It seeks to compel the defendant to disclose the identity of the persons occupying the suit property. It does not seek to compel the defendant to identify the identity of the person or persons with whom the defendant may have entered into a purchase agreement. The plaintiff brought this suit seeking an injunction and eviction orders in relation to the suit property. In my view, it is the plaintiff who ought to know the person who is in occupation of the suit property. To shift that burden to the defendant would be unreasonable.
4. Consequently, the court is not satisfied the plaintiff has made out a case to warrant the orders sought. The upshot is that the notice of motion dated 17/10/14 is dismissed for lack of merit.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 20TH DAY OF JULY 2018.
...........................
B M EBOSO
JUDGE
In the presence of:-
Mr Odoyo Advocate for the Defendant
Ms Halima Abdi - Court clerk