Dagoretti Corner Street Children Programme v Enos Baxic Oumo & 2 Others

a) A declaration that the Plaintiff is the legal and absolute proprietor of all that property known as Title No. Nairobi/Block 66/5254 (Formerly known as Title No. Dagoretti/Riruta/5254) together with the entire improvements and business thereon. b) An order of Permanent Injunction against the Defendants jointly and severally, whether by themselves, servants, agents, employees and/or officers, restraining them from trespassing, entering, remaining, or taking possession of all that property known as Title No. Nairobi /Block 66/5254 (formerly known as Title No. Dagoretti/Riruta/5254 including the entire improvements/developments within the said property. ELC LC E583 OF 2025 2 | 13

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c) An order directing the Officer Commanding Riruta Satellite Police Station (OCS) to ensure full and peaceful compliance with the orders of this Honourable Court. d) An order directing the Land Registrar to remove any restrictions lodged by the Directorate of Criminal Investigations on the title, if any, during the investigations. e) Costs of this suit. f) Any other remedy the Court deems fit to grant to meet the ends of justice. 2. The contention by the plaintiff is that it owns, occupies, and has initiated development on Land Title No. Nairobi/Block 66/52e/54, initially Title No. Dagoretti/ Riruta/5254 herein after the suit property, which it validly acquired on 29.7.2016 to further its charitable activities for the benefit of street children within the Dagoretti area who reside thereon. ELC LC E583 OF 2025 3 | 13

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3. The plaintiff avers that it has been in continuous occupation of the suit property, where it has developed to provide living accommodation with electricity, running water, and toilet facilities, currently occupied by 10 boys and two girls, which they consider as their home. 4. The plaintiff avers that the said development is funded by a donation of goodwill from the United Kingdom. 5. The plaintiff avers that in 2023, its directors, who are aged, resolved to construct apartments on the suit property purposely to generate income to fund its charitable activities without always depending on UK donations. 6. The plaintiff avers that on 4.7.2023, it submitted their application for development permission to the Nairobi City County, and by a letter dated 31.8.2023 the same was approved. Further, the plaintiff avers that it sought and obtained an Environmental Impact Assessment licence from ELC LC E583 OF 2025 4 | 13

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the National Environment Impact Assessment Authority, by a certificate of approval dated 7.12.2023, alongside a certificate of compliance from the National Construction Authority, paving the way for commencement of the construction activities. 7. The plaintiff avers that it then handed over the site to the contractor on or about February 2024, known as Plumbuild & Engineering Ltd. 8. The plaintiff avers that immediately after he commencement of construction activities, the contractor received a summons from the area chief on a complaint lodged by the 1 st defendant dated 5.3.2024, who was alleging that there existed a dispute over ownership of the suit property, yet the plaintiff was unaware of any such dispute on account of its registration status. ELC LC E583 OF 2025 5 | 13

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9. The plaintiff avers that the 1st defendant totally failed to substantiate his allegation, and the construction activities of 180 apartments continued as usual in the suit property, only for the defendants on 13.3.2024, without any colour of right and in the company of hired goons, to invade the suit property and carry out significant destruction, vandalism and theft, including causing grievous injuries to some of its workers at the site. 10. The plaintiff avers that it made a report at Nganjo Police Station under OB No. 08/13/03/2024. 11. The plaintiff avers that it has, through the DCI who has been investigating the claim, been informed that the 1 st defendant has no valid claim on the suit property and that the construction activities can go on; it is apprehensive and fearful of other attacks, vandalism or destruction; hence, protection is sought before this court against any likely ELC LC E583 OF 2025 6 | 13

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interference in future, otherwise the defendants are likely to violate its property rights through unprocedural and illegal action. 12. Despite service with summons to defend the suit, other than an entry of appearance, the defendant did not file a defence or attend the hearing to defend the suit. 13. At the hearing, Philip Kenneth Green testified as PW1. He relied on a witness statement dated 23.1.2028 as his evidence in chief.PW1 also relied on a copy of a certificate of incorporation dated 11.6.2011, Title Deed dated 29.7.2016, certificate of Title dated 9.11.2023, invoice confirming payment of land rates, approval certificate from the County dated 31.8.2023 approval certificate or licence from NEMA dated 7.12.2023, certificate of compliance from the National Construction Authority dated 25.3.2024, bundle of ELC LC E583 OF 2025 7 | 13

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Summons, letter dated 13.3.2024, photographs and OB No. 8/13/03/2024 and 25/14/23/2024 as PEXH 1-12 respectively. 14. In brief submission, the plaintiff urged the court to find that it is entitled to the reliefs sought as the plaintiff, through PW1, on a balance of probabilities, has tendered adequate evidence to substantiate the contents of the suit. 15. A permanent injunction is a court order requiring a person to do or cease doing a specific action that is issued as a final judgment in a case. 16. Order 40 Rule 2 of the Civil Procedure Rules provides that a court may issue a restraining order before or after judgment to restrain a defendant from committing a breach of contract or other injury of any kind. 17. A permanent injunction therefore perpetually restrains a defendant from committing such adverse acts. It fully determines the right of the parties before the court and is ELC LC E583 OF 2025 8 | 13

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granted upon the merits of the case4 after evidence is tendered in support of or against the claim. The injunction therefore perpetually restrains the commission of an act by the defendant in order for the right of the plaintiff to be protected, as was held in KPLC Ltd vs Sheriff Molana Habib (2018) eKLR. 18. The burden of proof under section 107 of the Evidence Act is on the plaintiff to substantiate the content of the plaint regardless of whether the suit is defended or not. 19. The plaintiff asserts its proprietary right to the suit property. It has provided a copy of the title deed and a certificate of title as exhibits. The law is that when a root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. In Munyu Maina Vs Hiram Gathiha Maina (2013) KECA 94 (KLR), the court held that a registered proprietor must go beyond the ELC LC E583 OF 2025 9 | 13

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instrument and prove how it acquired the title. In this suit, there is nothing brought by the defendants to show that the plaintiff did not acquire the title formally, legally, and free of any interest, including those that need not be noted in the register. 20. Section 24(a) of the Land Registration Act provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with rights and privileges. Such rights under sections 25 & 26 of the Land Registration Act, if acquired for valuable consideration, can only be challenged on the ground of fraud, misrepresentation, or acquisition through an unprocedural, illegal, or corrupt scheme. 21. In this suit, the plaintiff has tendered two OB reports and a bundle of summons from the area chief, showing interference with its property rights by the ELC LC E583 OF 2025 10 | 13

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defendants. Given a chance to attend court and establish the basis of their rival claim to the suit land, the defendants have not defended the suit. 22. In Watson Wahome Njura vs Cooperative Bank of Kenya (2010) eKLR, the court held that a plaintiff, to get an injunction, must show that he has a legal right to protect and that there is a high probability of future serious injury. 23. The plaintiff has demonstrated that there was a threatened and executed attempt to vandalise, destroy and inflict injuries to its developments and personnel working on the land, which the police had to investigate after a report was made to them. The fear or threat to its development is likely to recur in future unless the court intervenes; it is not far-fetched or imagined. 24. In this suit, the defendants have failed to defend the suit and challenge the evidence tendered by the plaintiff that ELC LC E583 OF 2025 11 | 13

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it owns the suit property. Nevertheless, this court, as held in Gitobu Imanyara & others vs Attorney General [2016]KECA 557 (KLR), despite the lack of a defence by the defendants, has to examine the plaintiff’s evidence to satisfy itself that indeed the plaintiff’s suit is proved, on a balance of probabilities. 25. Declaratory reliefs are sought in suits where a court is asked to declare the right of parties to a dispute. They seek to proclaim the existing right of the parties. See Marie Elizabeth Christine Adelaide de Brouwer vs Attorney General, Misc .Civil Application No. 1609 of 2003 ( OS) High Court of Kenya. 26. Looking at the totality of the pleadings and evidence tendered in the absence of a rebuttal by the defendants, I think the plaintiff has substantiated his claim to be entitled to the reliefs sought. ELC LC E583 OF 2025 12 | 13

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27. The suit is allowed with costs. 28. Orders accordingly. DELIVERED, DATED AND SIGNED ON 30th DAY OF SEPTEMBER, 2026 AT MILIMANI. ……………………. HON JUSTICE C.K NZILI JUDGE In the presence of ; Mr. Kamotho For plaintiff Court assistant: Julius. ELC LC E583 OF 2025 13 | 13

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