[2021] KEELC 3867 (KLR)
The court found that the Defendants are in possession of the suit property and have claimed adverse possession in a pending suit (HCCC No. 1104 of 1999), where status quo orders were issued. The Plaintiffs did not deny the Defendants' possession or the property's history as part of L.R. No. 11931. Granting a...
Source-derived case information.
- Citation
- [2021] KEELC 3867 (KLR)
- Parties
- Plaintiff: Teresia Wahu Karanja; Plaintiff: Waruguru Karanja; Defendant: Muli Kikonde; Defendant: Benard Kaemi Muteti; Defendant: Peter Mwanzia Mutua; Defendant: Daniel Muoso
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Injunctions, Land Title Disputes
- 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
Teresia Wahu Karanja
Plaintiff
Waruguru Karanja
Plaintiff
Muli Kikonde
Defendant
Benard Kaemi Muteti
Defendant
Peter Mwanzia Mutua
Defendant
Daniel Muoso
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiffs are entitled to a temporary injunction restraining the Defendants from remaining on and trespassing on the suit property pending determination of the suit.
- 2 Whether the Defendants have acquired rights over the suit property by adverse possession.
- 3 Whether the Plaintiffs' title to the suit property has been extinguished by operation of law.
Ratio Decidendi
The court found that the Defendants are in possession of the suit property and have claimed adverse possession in a pending suit (HCCC No. 1104 of 1999), where status quo orders were issued. The Plaintiffs did not deny the Defendants' possession or the property's history as part of L.R. No. 11931. Granting a temporary injunction would disturb the prevailing status quo and potentially determine the substantive rights of the parties before the main suit is heard. The court held that the appropriate course is to maintain the status quo until the substantive issues, including adverse possession and the validity of the Plaintiffs' title, are determined at trial. Consequently, the Plaintiffs'...
Court Disposition
application dismissed
Orders
- The Plaintiffs' Application dated 28th March, 2019 is dismissed with costs.
- The prevailing status quo regarding possession of the suit property shall be maintained pending determination of the main suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 36 OF 2019
TERESIA WAHU KARANJA.............................1ST PLAINTIFF
WARUGURU KARANJA..................................2ND PLAINTIFF
VERSUS
MULI KIKONDE...........................................1ST DEFENDANT
BENARD KAEMI MUTETI.......................2ND DEFENDANT
PETER MWANZIA MUTUA....................3RD DEFENDANT
DANIEL MUOSO.....................................4TH DEFENDANT
RULING
1. In the Notice of Motion dated 28th March, 2019, the Plaintiffs have prayed for the following orders:
a. That an order of temporary injunction be issued restraining the Defendants/Respondents, its servants, agents and/or employees or any other person whomsoever claiming under it from remaining on and trespassing on all that parcel of land known as Plot L.R. No. Ndithini/Mananja 7/38 and from doing any other prejudicial act thereon pending the hearing and determination of the suit herein.
b. That orders herein be enforced by the Officer Commanding Station Masinga Police Station.
c. Costs of this Application be borne by the Defendants/Respondents.
2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that they are the lawful owners of the suit property; that the Defendants trespassed on parcel of land known as Ndithini/Mananja 7/38 (the suit property)in the year 2016 and that the Defendants have threatened to put up permanent structures on the suit property.
3. The Defendants filed Grounds of Opposition in which they averred that the suit is time barred; that they have been living on the suit property since the 1920’s and the Plaintiffs’ titles are an illegality the same having been extinguished by the Limitation of Actions Act.
4. In his Replying Affidavit, the 2nd Defendant deponed that they have lived as families on the mother parcel of land number L.R. No. 11931 since time immemorial; that he was born on the suit property in 1972 and that they have never parted with possession of the land.
5. The 2nd Defendant deponed that they joined another group of persons and filed HCCC No. 1104 of 1999 which is still pending in court. The 2nd Defendant deponed that they obtained orders of the court in that suit stopping the sale of the suit land.
6. In his submissions, the Plaintiffs’ advocate submitted that the land in dispute is known as Ndithini/Mananja 7/38 measuring approximately 60 acres; that the Defendants have trespassed on the suit property and that the Defendants have not established that they have been on the suit land without any interruption.
7. On their part, the Defendants’ advocate submitted that the Plaintiffs do not have any right or claim over the suit property as the same was extinguished by law and that an injunction at this stage will amount to a determination of the Plaintiffs’ suit without hearing them.
8. The Plaintiffs’ claim is that they are the registered proprietors of land known as Ndithini/Mananja Block 7/38 measuring approximately 24. 28 Ha. The Plaintiffs have exhibited the Title Deed in respect to the suit property. The said title shows that the land was registered in favour of the Plaintiffs on 6th December, 2013.
9. The Plaintiffs have not denied that the suit property was initially known as L.R No. 11931 which was later sub-divided. The Plaintiffs have also not denied that the Defendants are in possession of the suit property.
10. Considering that the ultimate prayer in the Plaintiffs’ Plaint is to have the Defendants evicted from the suit property, the issue of whether the Defendants have been on the suit property continuously, peacefully and without the permission of the Plaintiffs for twelve (12) years must be considered first.
11. Indeed, there is a suit in which the Defendants have claimed for adverse possession in respect of L.R. No. 11931. In that suit, the parties agreed to maintain the status quo pending the hearing and determination of the suit.
12. That being so, and considering that the Defendants are in possession of the suit land, or a portion thereof, the prevailing status quoshould be maintained.
13. In the circumstances, the Plaintiffs’ Application dated 28th March, 2019 is dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF MARCH, 2021.
O.A. ANGOTE
JUDGE