Dorothy Wamunyu Muchiri v Barthlomew Joseph Waweru Titi [2018] KEELC 1676 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MILIMANI LAW COURTS

ELC NO.182 OF 2016

DOROTHY WAMUNYU MUCHIRI.........................PLAINTIFF

=VERSUS=

BARTHLOMEW JOSEPH WAWERU TITI..........DEFENDANT

RULING

1. This is a Ruling in respect of two applications. The first application is dated 29th February 2016, brought by the plaintiff. It seeks injunctive orders against the defendant in respect of LR No.4953/43/II in Thika Town (suit property). The second application is dated 3rd July 2017 brought by the defendant. It seeks orders restraining the plaintiff and her children from collecting rent from the suit property as well as restraining the plaintiff and her children from interfering with the defendant’s management of the suit property.

2. The suit property is registered in the name of the defendant who is a brother in-law of the plaintiff. The plaintiff had moved to court and filed a suit against the defendant seeking certain declaratory orders which are based on some arbitration by a local assistant chief who ruled that the suit property should be given to the family of the plaintiff who is the wife of the defendant’s deceased brother.

3. The parties herein had been directed to file written submissions in respect of the first application. The parties complied with the directions. Before a ruling could be delivered in respect of the first application, the defendant filed the second application. The plaintiff did not file a replying affidavit to the second application. When this matter came before me for directions on 27th July 2018, I granted leave to the respondent to file a replying affidavit and directed that parties file their written submissions within 14 days . As at the time of writing this ruling, neither the plaintiff nor the defendant had filed their submissions. The plaintiff had also not filed a replying affidavit as directed.

4. I have considered the first application as well as the opposition thereto by the defendant. I have also considered the submissions by the parties. The suit property has been a subject of dispute between the defendant and his brother who is now deceased. In 1987 the suit property was one of those being claimed by the deceased. The panel of elders declined to make any findings regarding the same and advised the deceased to file a suit before a competent court to prove his claim to it.

5. The deceased did not file suit as advised and neither did the family do so. Instead the family pursued the matter several years later before the local assistant chief who in November 2015 ruled that the deceased’s family was entitled to the entire suit property. This is the verdict which made the plaintiff’s son to forcefully move into the suit property after which this suit was filed.

6. The principles for grant of injunction are well settled. One of the principles for grant of an injunction is that the applicant must demonstrate that he/she has a prima facie case. In the instant case , it is clear that the plaintiff has not demonstrated that she has a prima facie case. As far as 1987 the plaintiff’s deceased husband did not demonstrate to the panel of elders that he had documents to show that he contributed to the purchase of the suit property. Several years later, the deceased’s family cannot demonstrate prima facie that the deceased contributed to the acquisition of the suit property. I therefore find no merit in the application by the plaintiff which is hereby dismissed with costs to the defendant.

7. As regards the second application by the defendant, the same is unopposed. The plaintiff’s counsel had claimed that he did not file a replying affidavit due to an oversight. The counsel was given 14 days to do so which he did not do. It is clear that the plaintiff’s son entered the suit property by force and started collecting rent. I allow the defendant’s application in terms of prayer (c), and (d). In summary thereof, the plaintiff’s application is dismissed with costs whereas the defendant’s application is allowed in terms of prayer (c) and (d). As this case relates to a property which is located within Thika Municipality within the jurisdiction of Thika ELC Court, I make an order transferring this file to Thika ELC Court for hearing and disposal. It is so ordered.

Dated, Signed and delivered at Nairobi on this 19thday of  September  2018.

E.O.OBAGA

JUDGE

In the presence of;-

Mr Sausi for M/s Waithera for defendant

Court Assistant: Hilda

E.O.OBAGA

JUDGE