[2010] KEHC 644 (KLR)
The court found that the plaintiffs had established a prima facie case with a probability of success based on the evidence of their registered ownership and the unopposed nature of the application. The court noted that the issuance of new titles to the 1st and 2nd defendants was alleged to be fraudulent and...
Source-derived case information.
- Citation
- [2010] KEHC 644 (KLR)
- Parties
- Plaintiff: Somerset Africa Ltd; Plaintiff: Yuken Mills Limited; Defendant: Cecilia Wamaitha Mwangi; Defendant: Justus Wainaina Njuguna; Defendant: The Commissioner of Lands; Defendant: The Chief Land Registrar; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 436 of 2010
- Procedural Posture
- Civil Suit / Interlocutory Injunction Application
- Outcome
- interlocutory injunction granted
- Judges
- GG Okwengu
- Legal Topics
- Land Title Fraud, Registration of Titles, Interlocutory Injunctions, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Somerset Africa Ltd
Plaintiff
Yuken Mills Limited
Plaintiff
Cecilia Wamaitha Mwangi
Defendant
Justus Wainaina Njuguna
Defendant
The Commissioner of Lands
Defendant
The Chief Land Registrar
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Civil Suit / Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are the bona fide proprietors of the suit properties.
- 2 Whether the registration and issuance of new titles to the 1st and 2nd defendants was fraudulent, irregular, illegal, or unprocedural.
- 3 Whether the plaintiffs are entitled to an interlocutory injunction restraining the 1st and 2nd defendants from dealing with the suit properties pending determination of the suit.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case with a probability of success based on the evidence of their registered ownership and the unopposed nature of the application. The court noted that the issuance of new titles to the 1st and 2nd defendants was alleged to be fraudulent and unprocedural, and that the plaintiffs' proprietary rights warranted protection pending the full hearing of the suit. In the absence of any opposition from the defendants, and with the Attorney General raising no objection, the court exercised its discretion to grant the interlocutory injunction as prayed, restraining the 1st and 2nd defendants from dealing with the suit properties...
Court Disposition
interlocutory injunction granted
Orders
- An interlocutory injunction is issued restraining the 1st and 2nd defendants from dealing with the suit properties pending the hearing and determination of the plaintiffs' suit.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.436 OF 2010
SOMERSET AFRICA LTD………………………….1ST PLAINTIFF
YUKEN MILLS LIMITED……………………….....2ND PLAINTIFF
VERSUS
CECILIA WAMAITHA MWANGI……………....1ST DEFENDANT
JUSTUS WAINAINA NJUGUNA...………………2ND DEFENDANT
THE COMMISSIONER OF LANDS….………….3RD DEFENDANT
THE CHIEF LAND REGISTRAR.……………….4TH DEFENDANT
THE HON. ATTORNEY GENERAL……...……..5TH DEFENDANT
R U L I N G
1. Somerset Africa Ltd who is the 1st plaintiff claims to be the registered proprietor of Land Parcel No.4953/72/IX Thika Municipality, while Yuken Mills Limited who is the 2nd plaintiff claims to be the registered owner and proprietor of land parcels No.4953/IX/73 and 4953/74/IX situated within Thika Municipality.Mr. Horatius Da Gama Rose, a director of the two companies has sworn an affidavit to which he has annexed certificates issued to the plaintiffs under the Registration of Titles Act.
2. The plaintiffs claim that they have now discovered that the 3rd and 4th defendants changed the registration system and issued new registration numbers in respect of the properties, having the suit properties reregistered under the Registered Land Act Cap 300. New titles being LR No.Thika Municipality/Block/IX/283, LR No.Thika Municipality/Block/IX/284 and LR No. Thika Municipality/ Block/ IX/ 285. It is contended that the new titles were, without any color of right and with fraudulent intentions, issued in the names of Cecilia Wamaitha Mwangi and Justus Wainaina Njuguna, who are the 1st and 2nd defendants. This was done without the consent or knowledge of the plaintiffs. The plaintiffs maintain that the issuance of the titles to the 1st and 2nd defendants is irregular, illegal, fraudulent, unprocedural and unjustifiable.
3. The plaintiffs have therefore filed the present suit seeking inter alia, a declaration that they are the bona fide proprietors of the said properties, and the cancellation from all land registers and records of the names of 1st and 2nd defendants. The plaintiffs now seek an order of interlocutory injunction restraining the 1st and 2nd defendants from dealing with the suit property pending the hearing and determination of the plaintiffs’ suit.
4. The 1st and 2nd defendants were duly served through substituted service. They have however not entered any appearance nor have they filed any response to the plaintiffs’ application. The Attorney General who appeared on behalf of the Commissioner of Lands and the Chief Land Registrar, who are the 3rd and 4th defendants, did not object to the plaintiffs’ application.
5. I have carefully considered this application. On the facts given, I am satisfied that the plaintiff has established a prima facie case with a probability of success. Moreover, the application has not been opposed.In the circumstances I allow the plaintiffs’ application dated20th September, 2010 and issue orders of interlocutory injunction as prayed in paragraph 3 of the application. Costs of the application shall be in the cause.
Dated and delivered this 10th day of November, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Nyaanga for the plaintiffs
Advocates for the defendants absent
B. Kosgei - Court clerk