[2018] KEELC 4611 (KLR)
The court found that both the Plaintiff and the 1st Defendant hold share certificates purporting to allocate them the same plot, indicating a double allocation by the 2nd Defendant. At this interlocutory stage, it is not possible to determine who holds a better title. The court held that the appropriate course is to...
Source-derived case information.
- Citation
- [2018] KEELC 4611 (KLR)
- Parties
- Plaintiff: Stephen Karomo Macharia; Defendant: Stephen Karani Macharia; Defendant: Karura Farmers Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 319 of 2007
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted; parties restrained from dealing with the Suit Property pending hearing and determination of the suit.
- Judges
- AK Bor
- Legal Topics
- Double Allocation, Injunctive Relief, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Karomo Macharia
Plaintiff
Stephen Karani Macharia
Defendant
Karura Farmers Company Limited
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 interlocutory injunction.
- 2 Whether there is a case of double allocation of the Suit Property and who holds a better title at this stage.
- 3 Whether the parties should be restrained from dealing with the Suit Property pending hearing and determination of the suit.
Ratio Decidendi
The court found that both the Plaintiff and the 1st Defendant hold share certificates purporting to allocate them the same plot, indicating a double allocation by the 2nd Defendant. At this interlocutory stage, it is not possible to determine who holds a better title. The court held that the appropriate course is to preserve the Suit Property by restraining all parties from dealing with it until the matter is fully heard and determined. This ensures that the status quo is maintained and prevents further prejudice to either party pending the trial, where the 2nd Defendant's testimony will be crucial in resolving the ownership dispute.
Court Disposition
interlocutory injunction granted; parties restrained from dealing with the Suit Property pending hearing and determination of the suit.
Orders
- An injunction is issued restraining all parties from entering, taking possession, selling, transferring, alienating, constructing, developing or interfering with Plot No. 358 on L.R. Number 8469/4 until the suit is heard and determined.
- Parties are directed to give discovery and set the suit down for hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO.319 OF 2007
STEPHEN KAROMO MACHARIA……………..…..…..PLAINTIFF
VERSUS
STEPHEN KARANI MACHARIA……………...…1ST DEFENDANT
KARURA FARMERS COMPANY LIMITED……..2ND DEFENDANT
RULING
In the application dated 11th May 2017, the Plaintiff seeks an injunction to restrain the 1st Defendant or his agents from entering, taking possession, selling, transferring, alienating, constructing, developing or interfering with the Plaintiff’s quiet possession and enjoyment of Plot No. 358 on L.R. Number 8469/4 (“the Suit Property”) situated in Nairobi County, pending hearing and determination of the suit. The Plaintiff seeks to have the injunctive orders enforced by the OCS, Buru Buru Police Station.
The Plaintiff claims to be the owner of the Suit Property. He alleges that the 1st Defendant has entered upon the Suit Property and commenced construction thereby dispossessing him of his plot. The Plaintiff avers that he has a prima facie case against the Defendants who have no rights to occupy his land.
The application is supported by the Plaintiff’s affidavit. The Plaintiff claims to have been registered as a member of the 2nd Defendant on 4/7/1982 and that he was allocated the Suit Property after making various payments to the 2nd Defendant. The 2nd Defendant asked him to pay an additional sum of Kshs. 2454/= on 29/6/1989 which he duly paid. In 2016 the 2nd Defendant asked him to pay Kshs. 15,000/= as fees for processing the title. He paid this sum. He was informed by the Advocates processing the title in March 2017 that the process had stopped when it was realised that the same plot had been allocated to two people.
The Plaintiff filed this suit and application seeking injunctive relief when the 1st Defendant deposited building materials on the Suit Property showing he intends to commence development of the Suit Property. The Plaintiff is apprehensive that the Defendants may alienate the Suit Property.
The 1st Defendant filed a Replying Affidavit in opposition to the Plaintiff’s application. He claims to have bought the Suit Property from the 2nd Defendant on 22/12/1983. He was issued with share certificate number 485 on 22/12/1983 confirming that he had been legally allocated Plot Number 358. He also paid an additional sum of Kshs. 2454/= to the 2nd Defendant on 7/8/1989. He annexed photographs showing he has built a pit latrine on the Suit Property and fenced it. He claims to have been in possession of the Suit Property since 1989. He urges the court to dismiss the Plaintiff’s application and counterclaims for a declaration that he is the bona fide owner of the Suit Property.
The court has looked at the Plaintiff’s share certificate no. 313 issued on 3/2/1984 showing that he had been legally allocated Plot No. 358. The Defendant holds a share certificate allocating the same plot. This is a case of double allocation of the same plot. It is difficult to tell who between the Plaintiff and 1st Defendant holds a better title at this stage of the proceedings. This can only be determined at the trial when it is hoped the 2nd Defendant will testify on who it sold the Suit Property to.
The court issues an injunction restraining all the parties from dealing with the Suit Property until the suit is heard and determined. Parties are directed to give discovery and set the suit down for hearing.
Dated and Delivered at Nairobi this 25th day of January 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Ngethe for the Plaintiff
Mr. Kangata for the Defendant
Mr. J. Okumu- Court Assistant