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ELCDismissed· [2019] KEELC 1584 (KLR)

Jane Wanjiru Thiongo (Suing in her capacity as the Administrator of the late Dedan Thiongo Kingangi) v Samuel Kimani Thube [2019] KEELC 1584 (KLR)

Environment and Land Court
27 August 2019
EOE. O. Obaga
397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop construction on disputed land because stopping it would effectively evict someone who had occupied it since 1992.

What this practically means

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Executive summary

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The Applicant, administratrix of the estate of the late Dedan Thiong'o Kingangi, the registered owner of LR No. Dagoretti/Uthiru/222 (later subdivided to include the suit property, LR No. Dagoretti/Uthiru/988), moved the court by Notice of Motion dated 31st January 2019 seeking an injunction to restrain the Respondent from further construction on the suit property, to be enforced by the OCS Kabete Police Station. She contended that in 2015 she found the Respondent constructing on the property, that he ignored her demands to stop, completed 20 units let out to tenants, and was embarking on 20 more units; she had also reported the matter to Kabete Police Station. The Respondent was duly served but filed no grounds of opposition or replying affidavit. The court noted the Respondent had been in possession since 1992, that construction was complete with tenants in occupation, and that the Applicant had filed a similar application in 2015 which was abandoned due to the wrong parcel being quoted. A succession cause in the Family Division of the High Court was on hold pending determination of ownership, in which the Respondent had filed a protest against confirmation of the grant. The court held that granting the injunction as prayed would amount to evicting the Respondent, and no injunction could be granted in those circumstances. The application was dismissed with no order as to costs, the main suit having a hearing date in September 2019. Judgment was delivered at Nairobi on 27th August 2019 by E. O. Obaga, Judge.

Key legal issues

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01

Whether an injunction should issue against the Respondent's construction on the suit property

Holding

The application for injunction was dismissed

Reasoning

The court considered the Applicant's application and oral submissions by her Counsel, the Respondent having filed no grounds of opposition. It noted the Respondent had been in possession since 1992, had completed construction of 20 units which were let to tenants, and that a succession cause was on hold pending determination of ownership, with the Respondent having filed a protest. The court held that granting the injunction would effectively evict the Respondent, so no injunction could issue.

p. 2

Legal principles established

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  • An injunction will not be granted where it would, in effect, evict a party in long possession pending determination of ownership of the land

Court orders

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  1. 1.The Applicant's Notice of Motion dated 31st January 2019 seeking an injunction is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Not expressly stated; exercised under the Environment and Land Court Act over a land dispute concerning LR No. Dagoretti/Uthiru/988

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, "Jane Wanjiru Thiongo (Suing in her capacity as the Administrator of the late Dedan Thiongo Kingangi) v Samuel Kimani Thube [2019] KEELC 1584 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1584/eng@2019-08-27

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