[2001] KEHC 512 (KLR)
The court found that the plaintiffs had established ownership of the subject land and that, except for the 1st defendant, the other defendants had either not denied the acts complained of or had failed to appear and oppose the application. The 2nd, 5th, and 6th defendants admitted entry onto the land but challenged...
Source-derived case information.
- Citation
- [2001] KEHC 512 (KLR)
- Parties
- Plaintiff: Velji Jadwa; Plaintiff: Mahubhai Velji Varsani; Plaintiff: Bhimji Velji Varsani; Defendant: The Municipal Council of Mavoko; Defendant: His Worship Mayor Peter Mailu; Defendant: Cllr Mbote Githinji; Defendant: Cllr. Mbote King’angi; Defendant: Amos Kilonzo; Defendant: Patric Ndeti
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2001
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Temporary injunction granted against all defendants except the 1st defendant.
- Legal Topics
- Interlocutory Injunctions, Trespass to Land, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Velji Jadwa
Plaintiff
Mahubhai Velji Varsani
Plaintiff
Bhimji Velji Varsani
Plaintiff
The Municipal Council of Mavoko
Defendant
His Worship Mayor Peter Mailu
Defendant
Cllr Mbote Githinji
Defendant
Cllr. Mbote King’angi
Defendant
Amos Kilonzo
Defendant
Patric Ndeti
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendants from trespassing or interfering with LR 25062 Mlolongo Trading Centre, Athi River.
- 2 Whether a prima facie case has been established against each defendant to warrant the grant of an injunction.
- 3 Whether monetary compensation would be an adequate remedy for the alleged acts of trespass.
Ratio Decidendi
The court found that the plaintiffs had established ownership of the subject land and that, except for the 1st defendant, the other defendants had either not denied the acts complained of or had failed to appear and oppose the application. The 2nd, 5th, and 6th defendants admitted entry onto the land but challenged the root of the plaintiffs' title, which the court found not pertinent at this stage. There was no evidence of compensation or surrender of the suit premises. The court held that monetary compensation would not be adequate if the defendants were allowed to alter the intended use of the land. Accordingly, a temporary injunction was granted against all defendants except the 1st...
Court Disposition
Temporary injunction granted against all defendants except the 1st defendant.
Orders
- A temporary injunction is issued restraining the 2nd, 3rd, 4th, 5th, and 6th defendants, their agents or anyone acting under them, from trespassing, building on, or interfering with LR 25062 Mlolongo Trading Centre, Athi River, until the suit is determined or further orders of the court.
- No injunction is issued against the 1st defendant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT MACHAKOS CIVIL CASE NO. 39 OF 2001
1. VELJI JADWA ::::::::::::::::::::::::::::::::::::::::::::::: 1 ST PLAINTIFF
2. MAHUBHAI VELJI VARSANI ::::::::::::::::::::::::::: 2 ND PLAINTIFF
3. BHIMJI VELJI VARSANI ::::::::: :::::::::::::::::::::::: 3 RD PLAINTIFF
VERSUS
1. THE MUNIIPAL COUNCIL OF MAVOKO :::::::::: 1 ST DEFENDANT
10 2. HIS WORSHIP MAYOR PETER MAILU ::::::::::: 2 ND DEFENDANT
3. CLLR MBOTE GITHINJI ::::::::::::::::::::::::::::: 3 RD DEFENDANT
4. CLLR. MBOTE KING’ANGI ::::: :::::::::::::::::::: 4 TH DEFENDANT
5. AMOS KILONZO :::::::::::::::::::::::::::::::::::::: 5 TH DEFENDANT
6. PATRIC NDETI ::::::::::::::::::::::::::::::::::::::: 6 TH DEFENDANT
Coram: J. W. Mwera J. Kavila Advocate for Applicants P. Mulwa Advocate for 1st Respondent F. Mulwa Advocate for 2nd, 5th and 6th Respondents 20 N/A Advocate for 3rd and 4th Respondents C.C. Muli ***************************
R U L I N G
The plaintiff firm in its application of 14. 3.2001 under O.39 r. 1 Civil Procedure Act desires that all the defendants and their agents etc. be restrained from trespassing, building on and in any way interfering with the plaintiff’s land No. LR 25062 Mlolongo Trading Centre, Athi River.
Mr. Kavila argued and showed that the plaintiff is the owner of the subject property by way of a government lease and that the defendants without right or authority were committing on it the acts complained of.
Mr. P. Mulwa for the 1st defendant council submitted that his client or officers had in no way trespassed over the plaintiff’s land and that if such a thing had taken 10 place the plaintiff would do well to deal directly with the trespassers whom the 1st defendant had nothing to do with. Mr. Mulwa said that no prima facie case had been made out against his client.
Mr. F. Mulwa for the 2nd, 5th and 6th defendants was equally hard put to see what case had been made out against his clients. He posited that even as they had a problem with the way the plaintiff got the title to the property, if any loss or damage is caused, a monetary compensation would do.
The court heard that the 3rd and 4th defendants were served with due processes 20 but they did not enter appearance and/or oppose this application.
After hearing all involved this court is satisfied that the plaintiff, the owner of the subject plot, is entitled to the temporary injunction sought. It has the title to the land and has not allowed the defendants to do anything on it or continue any things started thereon.
This court was however not satisfied from the grounds in the body of the application, the deposition by affidavit or Mr. Kavila’s submission that the 1st defendant has done any of the things complained of. Without a prima facie case being made out against the council at this point, it would not be worth much to issue an injunction against.
But the 3rd and 4th defendants who did not enter appearance or oppose this application by themselves, agents or whoever is acting under them on the plaintiff’s 10 land they are injuncted from doing that until this suit is determined or further orders of the court.
The 2nd, 5th and 6th defendants who swore an affidavit of 27. 3.2001 through the 2nd defendant, do not deny entry and committing acts complained of on the plaintiff’s land. They say, and that does not appear pertinent yet, that the plaintiff’s title had no good root and:
“5. That the plaintiffs have already been fully compensated for the loss of the suit land by way of surrender and re-allocation and may not 20 therefore suffer irreparable damages at all.”
Incidentally there was no evidence of surrender and reallocation of the suit premises, let alone evidence of compensation. In sum and save as against the 1st defendant, the injunction issues as set out above. If the defendants are allowed to alter the nature of use intended (to build light industries) of the suit land now it is not considered that monetary compensation will do later. Orders accordingly.
Delivered on 30th May 2001.
J. W. MWERA
JUDGE