Hassan Haji Abdi Ladif v Nairobi City County, Joseph Malakwen Sitienei, Al Mustaqbal Co. Ltd & National Land Commission [2018] KEELC 3905 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT NAIROBI

E.L.C. CASE NO. 695 of 2016

HASSAN HAJI ABDI LADIF .................................. PLAINTIFF

VERSUS

NAIROBI CITY COUNTY ............................ 1ST DEFENDANT

JOSEPH MALAKWEN SITIENEI .................. 2ND DEFENDANT

AL MUSTAQBAL CO. LTD ............................. 3RD DEFENDANT

NATIONAL LAND COMMISSION ................ 4TH DEFENDANT

RULING

The Plaintiff seeks an injunction to restrain the Defendants from evicting him or trespassing, selling, charging, constructing, leasing or committing acts of waste on L.R. No. 209/8534/130 South C, Nairobi (“the Suit Property”) pending hearing and determination of this suit.

He claims the 1st Defendant allocated him the Suit Property vide the letter of allotment dated 25/11/1997 and that he paid the stand premium and other dues on 16//2/2016. He claims to have processed the allotment and that the Suit Property was transferred to him on 21/7/2010. He later learnt that there had been double allocation of the Suit Property to him and the 2nd Defendant. He avers that he entered into an agreement with the 2nd Defendant on 4/9/2014 to have their two names registered as co-owners of the Suit Property. However, he did not annex a copy of the agreement evidencing this. His complaint is that the 2nd Defendant is colluding with the 1st Defendant to transfer the Suit Property to the 3rd Defendant contrary to the earlier agreement for co-ownership of the plot. He is apprehensive that the Defendants may evict him from the Suit Property and that he stands to suffer loss and damage.

The 1st Defendant denies allotting the Suit Property to the Plaintiff and maintains that the documents that the Plaintiff relies on to prove his ownership of the Suit Property are not authentic. Further, the 1st Defendant denies that it demanded or received stand premium and other dues from the Plaintiff. It avers that the Plaintiff has been in illegal occupation of the Suit Property for which he ought to pay damages. The 1st Defendant submitted that the Plaintiff’s documents show that he is pursuing plot no. L.R. No. 209/8534/130; which is different from the Suit Property. The Plaintiff’s advocate termed this an error and apologised for the error while making her oral submissions. The 3rd Defendant’s counsel associated himself with the submissions of the 1st Defendant. He urged the court to dismiss the Plaintiff’s application for injunction stating that the 3rd Defendant is in occupation of the Suit Property.

Has the Plaintiff demonstrated that he has a prima facie case with a probability of success against the Defendants? The court thinks not. The Plaintiff admits there was double allocation of the Suit Property. He did not exhibit the memorandum of agreement to confirm that he entered into an arrangement with the 2nd Defendant for co-ownership of the Suit Property.

The application dated 22/6/2016 is dismissed with costs to the 1st and 3rd Defendants.

Dated and delivered at Nairobi this 7th day of February 2018.

K. BOR

JUDGE

In the presence of: -

Ms. Chepkong’a for the Plaintiff

Mr. Mapesa holding brief for Mr. Anyoka for the 3rd Defendant

No appearance for 1st, 2nd and 4th Defendants

Mr. V. Owuor- Court Assistant