Lucy Wambui Kamau & Peter Kibe Kamau v Leonard Nganga Karuga [2018] KEELC 113 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO.267 OF 2018

LUCY WAMBUI KAMAU........................1ST PLAINTIFF/APPLICANT

PETER KIBE KAMAU............................2ND PLAINTIFF/APPLICANT

-VERSUS-

LEONARD NGANGA KARUGA................DEFENDANT/APPLICANT

RULING

The Applicants have filed an Originating Summons dated 5th November 2018 seeking to be declared the registered proprietors of the suit property LR.No.Kabete/Gathiga/T.180, by virtue of having lived on the suit property in an open and peaceful possession and occupation since 1967.  They have alleged that the Defendant has recently acquired the suit property and has never occupied the same.  However, he has threatened to demolish the Plaintiffs’ houses and has even disconnected electricity and is intending to evict them.  They have therefore sought for various conservatory orders in the Notice of Motion dated 5th November 2018.

The Defendant/Respondent has filed a Replying Affidavit dated 27th November 2018, and had admitted having acquired the suit property recently as an innocent purchaser for value.  That he intends to take possession and develop the suit property LR.No.Kabete/Gathiga/T.180 and he therefore expects the Plaintiffs/Applicants to move out voluntarily.

There is no doubt that the Defendant acquired the suit property on 3rd October 2018, as is evident from the title deed attached to his Replying Affidavit.  He has admitted that he expects the Plaintiffs/Applicants to move out voluntarily from the suit property.  However, the Plaintiffs/Applicants have averred that they have lived on the suit property all their lifetime from 1967.  The issues of whether the Plaintiffs have lived on the suit property from 1967 and whether the Defendant/Respondent is an innocent purchaser are issues which can only be determined in the main trial.

However, it is evident that the Defendant acquired the suit property on 3rd October 2018 and he does expect the Plaintiffs/Applicants to move out voluntarily.

Therefore the Court finds that the Plaintiffs/Applicants stay on the suit property is threatened or there is a danger of them being evicted from the suit property before the contested issues have been resolved.  This is a matter that deserves conservatory orders.

For the above reasons, the Court allows the Applicant’s Notice of Motion dated 5th November 2018 in terms of prayers No.5, 6, 7and8.

Further the Defendant is restrained from seeking vacant possession for the Plaintiffs until the Originating Summons is heard and determined.  Costs shall be in the cause.

Further, the Respondent is granted leave of 14 days to file his response to the Originating Summons and Plaintiffs have correspondence leave to file any response if need be.  Mention on 27th February 2019 for taking directions on how to proceed with the Originating Summons.

This Ruling therefore disposes off the Notice of Motion dated 5th November 2018.

It is so ordered.

Dated, Signed and Delivered at Thika this 28th  day of November 2018.

L. GACHERU

JUDGE

In the presence of

Mr. Kamau for the Plaintiffs/Applicants

Mr. Magani holding brief for Mr. Mwaura Shairi for the Defendant

Lucy - Court clerk

L. GACHERU

JUDGE

28/11/2018