[2018] KEELC 4643 (KLR)
The court found that both parties presented certificates of ownership for different plots within the Ruaka Squatters Upgrading Scheme, but neither produced an area map or evidence clarifying the precise location of the disputed plots. Due to this lack of clarity, the court could not conclusively determine whether...
Source-derived case information.
- Citation
- [2018] KEELC 4643 (KLR)
- Parties
- Plaintiff: Stella Kagwiria Kamau; Defendant: Paul Njuguna Waweru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 507 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction granted restraining both parties from dealing with the disputed plot pending determination of the suit. Each party to bear its own costs.
- Judges
- AK Bor
- Legal Topics
- Injunctive Relief, Ownership Disputes, Allocation of Land, Squatters Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stella Kagwiria Kamau
Plaintiff
Paul Njuguna Waweru
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of an injunction against the Defendant.
- 2 Whether the Defendant is interfering with the Plaintiff's plot number 223 or acting within his own plot number 268.
- 3 Whether the preservation of the disputed property is warranted pending determination of the suit.
Ratio Decidendi
The court found that both parties presented certificates of ownership for different plots within the Ruaka Squatters Upgrading Scheme, but neither produced an area map or evidence clarifying the precise location of the disputed plots. Due to this lack of clarity, the court could not conclusively determine whether the Defendant was interfering with the Plaintiff's plot or acting within his own. In the interest of justice and to prevent potential prejudice to either party, the court held that it was reasonable and fair to preserve the suit property by restraining both parties from dealing with the disputed plot until the true identity and location of the plot is determined at trial. Each...
Court Disposition
Interlocutory injunction granted restraining both parties from dealing with the disputed plot pending determination of the suit. Each party to bear its own costs.
Orders
- Both Plaintiff and Defendant are restrained from dealing with the disputed plot until the suit is determined.
- Each party shall bear its own costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENTAL AND LAND COURT
AT NAIROBI
ELC CASE NO. 507 of 2017
STELLA KAGWIRIA KAMAU.................PLAINTIFF
VERSUS
PAUL NJUGUNA WAWERU.............DEFENDANT
RULING
The Plaintiff filed the application dated 28th July 2017 seeking an injunction to restrain the Defendant from dealing with the Plot number 223 situated in Kasarani Mwiki, Nairobi pending hearing and determination of her suit.
The Plaintiff claims that the Government of Kenya allocated the land known as L.R. Number 8470 (L.R. 10794/1) in Kasarani Mwiki to a group of squatters known as Ruaka Squatters Upgrading Scheme. The land was then subdivided and plots created out of it.
The Plaintiff claims to have bought Plot number 223 from Samuel Kuria Muhia in 2016 at the consideration of Kshs. 350, 000. She contends that the Defendant unlawfully entered upon her land, dug trenches and deposited building materials with a view to constructing on her plot.
On his part, the Defendant argues that he bought Plot number 268 in December 2010 and took possession of the plot.
Both the Plaintiff and the Defendant annexed copies of the certificates that Ruaka Squatters Upgrading Scheme issued to them showing that they own Plot numbers 223 and 268 respectively.
The issue for determination is whether the Plaintiff has demonstrated that she has a prima facie case against the Defendant. It would seem that both parties bought plots that fall within Ruaka Squatters Upgrading Scheme. However, the bone of contention is whether the disputed plot is plot number 223 or it is plot number 268. Neither party produced a copy of the area map showing the exact location of both plots on the ground. In the circumstances, the court is unable to determine whether the Defendant is constructing on plot number 223 and not 268.
In the interest of justice, it is reasonable and fair to preserve the Suit property by restraining both parties from dealing with the plot in dispute until a determination is made as to what plot number it is. Each party will bear its own costs.
Dated and delivered at Nairobi this 5th day of February 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Mwangi holding brief for Mr. Maina for the Plaintiff
Ms. Mutemi for the Defendant
Mr. V. Owuor- Court Assistant