GABRIEL JOSEPH GATUMBI,MWANGI BORE & HAWKINS NGALI MGANGA v STEPHEN NDUATI MUHINJA,WILKIS OBIERO OTIENO,CITY COUCIL OF NAIROBI & COMMISSIONER OF LANDS [2011] KEHC 3605 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ELC NO.305 OF 2010

The plaintiffs brought this suit against the defendants in respect of a parcel of land known as Tittle No. NAIROBI/BLOCK 62/1238. It is the plaintiffs’ case that the said land is public land but the 1st and 2nd defendants have claimed ownership thereof fenced the same and commenced construction.

The plaintiffs have tried to settle the matter with the 3rd and 4th defendants in vain. It is now their case that an order should be issued to restrain the 1st and 2nd defendants from constructing or in any manner dealing with the said property. The plaintiffs own property in the adjoined plots which have been compromised as a result of the development taking place in the disputed property. It is their case that the actions of the 1st and 2nd defendants are illegal, null and void as they amount to land grabbing. Their interests in the said parcel of land has caused them inconvenience and irreparable damage. They have therefore moved the court for injunction orders under Order 39 Rules 1 and 2 of the Civil Procedure Rules and Section 1a, a,b and 3(a) of the Civil procedure Act to restrain the 1st and 2nd defendant from construction or in any manner dealing with, or interfering with tittle No. NAIROBI/BLOCK 62/1238 pending the hearing and determination of this suit.

The application is based on the grounds set out on the face of the application to with

(a) The subject suit property involves public land.

b)The said construction has completely locked access to the 1st plaintiffs.

c) The said construction has completely blocked access to the 1st plaintiffs’ property.

d)The construction has greatly interfered with the plaintiffs’ usage of other public facility adjoining the suit property resulting to irreparable loss of right to enjoy their properties.

The application is opposed and there are replying affidavit sworn by the 1st defendants and also submissions filed on behalf of the 2nd and 3rd defendants.

It is the submission on behalf of the 3rd respondent that is instructive. The 3rd respondent is the City Council of Nairobi. In the submission the 3rd respondent says that the Land is registered in its name but linked to Stephen Nduati Muhinja the 1st defendant respondent. However there is a title a copy of the tittle annexed to the affidavit of Mr. Wilkis Obiero Otieno showing that he is the registered owner of the said lease.The said lease does not show that the 3rd defendant consented to the transfer from the 1st defendant to the 2nd defendant.

There is therefore a very serious triable issue in respect of the ownership of the said property.  It has been submitted that the plaintiffs may not have the locus standi to institute this proceedings. With respect I disagree because Section 22 and 23 of the Constitution confer such rights. The only consideration at this stage is whether or not the plaintiffs have established a prima facie case with a probability of success and if the order is not granted they are likely to suffer irreparable loss. If the court is in doubt, it shall decide the matter on a balance of convenience.

Going by the contested positions of the parties herein I believe the best order that commences itself is the preservation of the subject matter pending the hearing of the main suit. That is to say the defendants are hereby restrained from dealing with the subject matter that will alter the nature and character of the said piece of land. In other words the alleged construction must stop forthwith. However the plaintiff must file an undertaking in damages in favour of the defendants in the event that the case is decided against them. That undertaking must be filed within 7 days of this ruling. Each party shall bear their own costs.

Orders accordingly.

Dated, signed and delivered at Nairobi this 9th day of February, 2011.

A.MBOGHOLI MSAGHA

JUDGE