[2006] KEHC 1504 (KLR)
The court found that the plaintiff's application for a temporary injunction was untenable because the land parcel in question, LR NO. KIAMBAA/KIHARA/427, had been subdivided and ceased to exist as a discrete entity. The plaintiff himself conceded that new titles had been issued for the subdivided parcels, which are...
Source-derived case information.
- Citation
- [2006] KEHC 1504 (KLR)
- Parties
- Plaintiff: Samuel Thachi Wangi; Defendant: Alex Kamau; Defendant: Loise Wanjiru Thama; Defendant: Rachel Waruguru Gacheru; Defendant: Agnes Wairimu Munene
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 340 of 2003
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the defendants
- Judges
- JL Osiemo
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Thachi Wangi
Plaintiff
Alex Kamau
Defendant
Loise Wanjiru Thama
Defendant
Rachel Waruguru Gacheru
Defendant
Agnes Wairimu Munene
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether a temporary injunction can issue to restrain the defendants from activities on land parcel LR NO. KIAMBAA/KIHARA/427, which has been subdivided and new titles issued.
- 2 Whether the plaintiff has a legal interest in the subdivided parcels sufficient to warrant injunctive relief.
Ratio Decidendi
The court found that the plaintiff's application for a temporary injunction was untenable because the land parcel in question, LR NO. KIAMBAA/KIHARA/427, had been subdivided and ceased to exist as a discrete entity. The plaintiff himself conceded that new titles had been issued for the subdivided parcels, which are now registered in the names of the defendants and others. As such, the plaintiff could not seek injunctive relief over a non-existent property, and there was no legal basis to restrain the defendants from activities on land to which they hold registered title. The application was therefore dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The plaintiff's application for a temporary injunction is dismissed.
- The plaintiff shall pay the costs of the application to the defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 340 of 2003
SAMUEL THACHI WANGI………………………….……………........................................……..PLAINTIFF
VERSUS
ALEX KAMAU …………………………………................................…………………….1ST DEFENDANT
LOISE WANJIRU THAMA………………..………......................................……………..2ND DEFENDANT
RACHEL WARUGURU GACHERU……..……....................................………………...3RD DEFENDANT
AGNES WAIRIMU MUNENE………...................................….………………………….4TH DEFENDANT
RULING
The plaintiff by way of this Chamber Summons expressed to be brought under Order XXXIX Rule 12 & 3 of the Civil procedure Rules and Sections 3A of the Civil Procedure Act seeks orders that a temporary injunction do issue against the defendants restraining them from any further digging of trenches, dumping of stones, sand and construction materials or any construction of any building in land parcel LR NO. KIAMBAA/KIHARA/427 (and now known as KIAMBAA/KIARA/3101 to 3110) pending the hearing and determination of this suit.
The application is supported by an affidavit sworn by the plaintiff in which he avers that he is the registered proprietor of the suit premises LR NO.KIAMBAA/KIHARA/427 and now known as LR NO. KIAMBAA/KIHARA/3101 to 3110 and he was surprised to see the defendants delivering building materials at the site claiming ownership.
The application is opposed on the grounds that the suit premises for which injunction is sought LR NO. KIAMBAA/KIHARA/427 does not exist as the same had been subdivided and new titles issued namely KIAMBAA/KIHARA/3101 to 3110. This is supported by official search which shows that the new tittles are in the names of the defendants and others. This is conceded by the plaintiff in paragraph 3 of the plaint where he admits that land parcel LR NO. KIAMBAA/KIHARA/427 was subdivided into LR NO. KIAMBAA/KIHARA/3101 to 3110 and new tittles have been issued.
That being the case the prayer sought by the plaintiff is not tenable. An order of injunction cannot issue to restrain the defendant from dumping building materials on a non existence premises. LR NO. KIAMBAA/KIHARA/427 having been subdivided and new titles created and issued.
The plaintiff’s application is therefore dismissed with costs to the defendants.
Dated and delivered at Nairobi this 5th day of July 2006.
J.L.A. OSIEMO
JUDGE