[2017] KEELC 2588 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating registered ownership of the suit property and evidence of the 1st defendant's ongoing construction. There was a real apprehension that the property could be transferred before the suit's...
Source-derived case information.
- Citation
- [2017] KEELC 2588 (KLR)
- Parties
- Plaintiff: Wilfred Kiptum Kimalat (suing as the appointed attorney of James Kipkoech Kimalat); Defendant: Wycliffe Onyango; Defendant: Chief Land Registrar; Defendant: District Land Registrar, Nairobi; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 824 of 2016
- Procedural Posture
- Interlocutory Application / Ruling on Application for Injunction and Stay Orders
- Outcome
- Application for interlocutory injunction and stay of registration granted; eviction order declined.
- Judges
- AK Bor
- Legal Topics
- Injunctions, Land Title Disputes, Registration of Land, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Kiptum Kimalat (suing as the appointed attorney of James Kipkoech Kimalat)
Plaintiff
Wycliffe Onyango
Defendant
Chief Land Registrar
Defendant
District Land Registrar, Nairobi
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Injunction and Stay Orders
Legal Issues
- 1 Whether the plaintiff is entitled to interlocutory injunctive orders restraining the 1st defendant from dealing with the suit property pending determination of the suit.
- 2 Whether the court should stay registration of any dealings on the suit property until the suit is heard and determined.
- 3 Whether an eviction order can be granted at the interlocutory stage.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating registered ownership of the suit property and evidence of the 1st defendant's ongoing construction. There was a real apprehension that the property could be transferred before the suit's determination, justifying the need to preserve the status quo. The court held that interlocutory injunctive relief and a stay of registration of dealings were appropriate to prevent irreparable harm. However, the court declined to grant an eviction order at this stage, as such an order would be final and not suitable for interlocutory proceedings. The orders were to be enforced by the...
Court Disposition
Application for interlocutory injunction and stay of registration granted; eviction order declined.
Orders
- An injunction is issued restraining the 1st defendant, his agents or servants from trespassing, developing or dealing with Nairobi Umoja/Block 107/1/1131 until the suit is heard and determined.
- Registration of any dealings on Nairobi Umoja/Block 107/1/1131 is stayed until the suit is heard and determined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 824 OF 2016
WILFRED KIPTUM KIMALAT (SUING AS THE APPOINTED ATTORNEY OF JAMES KIPKOECH KIMALAT)….. PLAINTIFF
VERSUS
WYCLIFFE ONYANGO….…………………………...............................................................................……….1ST DEFENDANT
CHIEF LAND REGISTRAR………………………….............................................................................…….…2ND DEFENDANT
DISTRICT LAND REGISTRAR, NAIROBI …….….............................................................................………..3RD DEFENDANT
HON. ATTORNEY GENERAL…………………................................................................................….……….4TH DEFENDANT
RULING
The Plaintiff seeks orders of injunction to restrain the 1st Defendant, his agents or servants from trespassing, developing or dealing with the land known as Nairobi Umoja/ Block 107/1/1131(“the Suit Property”), until the suit is heard through the application dated 14th July 2016. He also seeks orders to stay registration of any dealings on the Suit Property and an order to evict the 1st Defendant pending hearing and determination of this suit. This being an interlocutory application, the court will consider prayers 4 and 5 of the application. The 6th prayer for eviction cannot be granted on a temporary basis since an eviction order is final.
The application was served on the 2nd to 4th Defendants. The 1st Defendant could not be found for service although he is said to be constructing on the Suit Property. The Plaintiff sought and obtained orders to serve the 1st Defendant by substituted means. The 1st Defendant was served by an advertisement placed in the Daily Nation of 6th June 2017. The 1st Defendant did not enter appearance or file any papers in court. Mr. Terrell who appears for the 2nd to 4th Defendants did not oppose the application as the orders sought were against the 1st Defendant.
The Plaintiff who swore the affidavit in support of the application claims to hold a power of attorney from James Kipkoech Kimalat, the registered owner of the Suit Property. The Plaintiff annexed a copy of the certificate of lease over the Suit Property dated 15th January 1998 together with copies of receipts issued to James Kipkoech Kimalat for the payment of rates. The Plaintiff claims that the 1st Defendant has commenced construction on the Suit Property and is apprehensive that the Suit Property may be transferred before this suit is determined. The applicant wrote to the Cabinet Secretary for Lands on 23rd July 2014 requesting for investigations into the allocation of the Suit Property to other parties. The County Government of Nairobi wrote to the Plaintiff on 18th August 2014 and confirmed that from its records, the Suit Property is registered in the name of James Kipkoech.
It is necessary to restrain dealings on the Suit Property until the suit is heard and determined. The court grants prayers 4 and 5 of the application. The orders will be enforced by the Officer Commanding Station, Buru Buru. The Plaintiff will have the costs of the application.
Dated and delivered at Nairobi this 27th day of June 2017.
K. BOR
JUDGE
In the presence of: -
Nyantika for the Plaintiffs
No appearance for the Defendants
Mr. V. Owuor- Court Assistant