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ELCPartially AllowedNotice of Motion dated 20th October 2016 (suit number not stated in the ruling)· [2017] KEELC 726 (KLR)

James Gachari Wanjohi & another v Hellen Njeri Aka Hellen Wangui Njeri & another [2017] KEELC 726 (KLR)

Environment and Land Court (court name not stated; single judge sitting at Nairobi)
14 November 2017
EOE. O. Obaga
739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An ELC judge in Nairobi froze all construction and dealings on two disputed plots until trial, finding conflicting land claims too tangled to resolve on paper.

What this practically means

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Executive summary

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The applicants, a father and son, moved the court by Notice of Motion dated 20th October 2016 seeking an injunction restraining the respondents from developing, constructing, selling, transferring, leasing, charging, damaging, encroaching on or interfering with plots P.3857 and P.3857 B arising from Share Certificate No. 0416. The first applicant claimed he purchased plot P.3857 in January 1991 from a shareholder of the second respondent company, was entered in its records, and received bonus plot P.3857 B in 1997; the second applicant built and lived on the plot until he was arrested, threatened, forcefully evicted and his house demolished in 2016, after which the first respondent took possession. The first respondent opposed, claiming the plots on the ground are hers (Nos. N 38 and N 39) bought from Nyakinyua Mumbi Wanawake Society Kenya in the 1990s, and accused the applicants of attempting to grab her plots. The court observed that although the parties cited different plot numbers, they appeared to be fighting over the same plots, and that the first respondent's own documents showed she was taken to the site only in April 2016 despite claiming purchase in the 1990s. The second respondent, custodian of records, said nothing. Finding serious conflicts of fact that could not be resolved on the affidavits, and noting the second applicant had already been evicted, the court, following Ougo & another v Otieno (1987) KLR 364, ordered maintenance of status quo: no further construction or dealing with plots P.3857 and P.3857 B until the suit is heard and determined. Costs of the application were made costs in the cause. The wider claims were left for full trial.

Key legal issues

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01

Whether injunctive relief could be granted on the affidavits where both parties claim the same land under different plot numbers

Holding

The court declined to determine genuineness of documents at interlocutory stage and ordered maintenance of status quo pending trial.

Reasoning

Both parties claimed the same plots on the ground while citing different parcel numbers. The first respondent said she bought her plots in the 1990s, yet her own documents showed she was taken to the site in April 2016, while the applicants claimed possession since 1991 and 1997. The second respondent, custodian of the records, remained silent. With such serious conflicts of fact and an eviction already having occurred, the court held that the genuine documents question was a matter for full trial and the appropriate interim measure was preservation of the status quo, citing Ougo & another v Otieno.

p. 2

Legal principles established

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  • Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute is decided at trial.

Court orders

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  1. 1.An order for maintenance of status quo directing that there shall be no further construction or dealing with the disputed properties, i.e. P 3857 and P 3857B, until the suit is heard and determined
  2. 2.Costs of the application shall be costs in the cause

Authorities

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Cases cited (1)

  • Ougo & another Vs Otieno
    (1987) KLR 364
Jurisdiction invoked
Original civil jurisdiction over land disputes; the ruling does not cite a specific constitutional or statutory provision.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Gachari Wanjohi & another v Hellen Njeri Aka Hellen Wangui Njeri & another [2017] KEELC 726 (KLR)", Case Analysis (2017). Notice of Motion dated 20th October 2016 (suit number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/726/eng@2017-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.