[2021] KEELC 2742 (KLR)
The court found that the plaintiffs/applicants failed to demonstrate that they deserved the protection of a temporary injunction, particularly as the structures in question had already been demolished by the time of the application. The court noted the plaintiffs' delay in prosecuting the substantive originating...
Source-derived case information.
- Citation
- [2021] KEELC 2742 (KLR)
- Parties
- Applicant: Susan Mbeke Kasome & 872 Others; Respondent: Njiru Ageria Development Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 607 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Adverse Possession, Interlocutory Injunctions, Quiet Possession, Demolition of Structures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Mbeke Kasome & 872 Others
Applicant
Njiru Ageria Development Limited
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs/applicants are entitled to a temporary injunction restraining the defendant from interfering with the suit property pending determination of the originating summons.
- 2 Whether the plaintiffs/applicants have demonstrated sufficient grounds for the grant of interlocutory injunctive relief.
Ratio Decidendi
The court found that the plaintiffs/applicants failed to demonstrate that they deserved the protection of a temporary injunction, particularly as the structures in question had already been demolished by the time of the application. The court noted the plaintiffs' delay in prosecuting the substantive originating summons despite directions from the Court of Appeal to expedite the hearing. Applying the principles for grant of interlocutory injunctions, the court held that the applicants had not established a prima facie case or shown irreparable harm justifying the orders sought. Consequently, the application lacked merit and was dismissed, with costs to abide the outcome of the originating...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 29th March 2021 is dismissed.
- Costs to abide the outcome of the originating summons.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 607 OF 2013
SUSAN MBEKE KASOME & 872 OTHERS..................PLAINTIFFS/APPLICANTS
=VERSUS=
NJIRU AGERIA DEVELOPMENT LIMITED.......................................DEFENDANT
RULING
1. This is the Notice of Motion dated 29th March 2021 brought under section 3A and 63€ of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 40 Rules 2 and 4, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.
2. It seeks orders:-
1. Spent.
2. Spent
3. That pending the hearing and subsequent final determination of the amended originating summons dated 26th August, 2013 filed herein, this honourable court be pleased to issue a temporary injunction restraining the respondent by itself, its agents, servants, employees and/or any person claiming any right whatsoever under it from entering upon, remaining thereon, removing from, wasting, subdividing, digging on, excavating, fencing, erecting any building or demolishing the applicant’s structures erected thereon whatsoever or otherwise dealing with the property known as Land Reference Number 13468 situated within Nairobi City County (“the suit property) and/or in any way whatsoever interfering with the plaintiff’s quiet possession, use and enjoyment of the same.
4. That the costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 13.
4. The application is supported by the affidavit of Susan Mbeke Kasome the plaintiff sworn on the 29th March 2021.
5. It appears the application is not opposed.
6. I have gone through the pleadings, the plaintiffs herein are claiming the suit property through adverse possession. The defendant is the registered proprietor of the suit property.
7. I have gone through the court record. By a ruling dated 5th June 2015 Honourable Lady Justice M. Gitumbi, after hearing the defendant’s Notice of Motion dated 20th June 2014 granted the following orders:-
“That the orders be and are hereby issued restraining the plaintiffs whether by themselves, their agents, servants and/or anybody claiming under them from cutting stones, selling, alienating, entering, wasting or in any way interfering with LR No 13468 pending the hearing and determination of the plaintiffs’ amended originating summons dated 26th August 2013”.
8. The plaintiffs being dissatisfied with these orders preferred an appeal to the Court of Appeal. The Court of Appeal in its Judgment dated 2nd February 2018 made a finding that the issue of ownership of Land Reference Number 13468 could only be determined upon hearing the substantive amended originating summons dated 16th August 2013.
9. The Court of Appeal also directed that the suit be listed for substantive hearing of the originating summons. This judgment was delivered on 2nd February 2018. The plaintiffs were obligated to expedite the hearing of the originating summons so that their rights could be determined.
10. I have gone through the court record. The plaintiffs did nothing until December 2020. Subsequently they filed the Notice of Motion dated 29th March 2021.
11. From paragraph 5 of the supporting affidavit sworn by Susan Mbeke Kasome sworn on the 29th March 2021 it appears that the structures have already been demolished. I find that the plaintiffs/applicants have failed to demonstrate that they deserve this protection from this court. I am guided by the decision of Bosire J (as he then was) Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another [1990] KLR 557.
12. I find no merit in this application and the same is dismissed. The costs do abide the outcome of the originating summons. The plaintiffs are directed to expedite the hearing of the Originating summons so that these issues can be resolved.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI ON THIS 24TH DAY OF JUNE 2021.
..........................
L. KOMINGOI
JUDGE
In the presence of:-
Mr. K. Mboya for the Plaintiffs
No appearance for the Defendant
Phyllis - Court Assistant