[2016] KEHC 6732 (KLR)
The court found that the plaintiff is the registered owner of the suit land and that the defendant had unlawfully trespassed, cut down trees, and destroyed property. The defendant failed to appear or contest the application despite proper service. The court was satisfied that the plaintiff had established a prima...
Source-derived case information.
- Citation
- [2016] KEHC 6732 (KLR)
- Parties
- Plaintiff: Albert Mpuria M'Arimi; Defendant: George Kajogi Muriuki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 110 of 2015
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed. Temporary injunction granted as prayed in prayers 2, 3, and 4. Costs awarded to the plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Injunctions, Trespass to Land, Ownership Disputes, Preservation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Mpuria M'Arimi
Plaintiff
George Kajogi Muriuki
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from entering, cutting trees, or disposing of felled trees on the suit land.
- 2 Whether the plaintiff has established a prima facie case with a likelihood of success.
- 3 Whether damages would be an adequate remedy for the plaintiff.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit land and that the defendant had unlawfully trespassed, cut down trees, and destroyed property. The defendant failed to appear or contest the application despite proper service. The court was satisfied that the plaintiff had established a prima facie case, that damages would not be an adequate remedy due to the ongoing risk of loss and volatility, and that the balance of convenience favored the plaintiff. Accordingly, the court granted the orders sought in prayers 2, 3, and 4 of the application, restraining the defendant from further trespass, ordering preservation of felled trees/logs, and directing the police to...
Court Disposition
Application allowed. Temporary injunction granted as prayed in prayers 2, 3, and 4. Costs awarded to the plaintiff.
Orders
- Temporary injunction restraining the defendant, his servants, assigns, and representatives from entering upon the plaintiff's parcel L.R. IGOJI/MWERU-11/6 and cutting down trees thereon pending hearing and determination of the suit.
- Order preventing the defendant, his servants, assigns, representatives, and agents from selling or disposing of the felled trees/logs and directing that the felled trees/logs be preserved at the police station until the application is heard and determined.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND CASE NO 110 OF 2015
ALBERT MPURIA M'ARIMI.......................................PLAINTIFF/APPLICANT
versus
GEORGE KAJOGI MURIUKI.................................DEFENDANT /RESPONDENT
R U L I N G
This application is dated 4th December,2015. It seeks orders:
THATthis application be certified as urgent and be heard ex-parte in the first instance.
THATthis Honourable Court be pleased to issue an order of temporary injunction restraining the Defendant by himself, his servants, his assigns and representatives from entering upon the Plaintiffs parcel of land L.R. IGOJI/MWERU-11/6 and cutting down trees thereon pending hearing and determination of the suit.
THATthis Honourable Court be pleased to issue an order preventing the Defendant by himself, his servants, his assigns, his representatives and or agents from selling and disposing off the felled trees/logs and that the felled trees/logs be preserved at the police station until this application is heard and determined.
THATthe O.C.S Igoji Police Station be served with the order to ensure compliance.
THATcosts of this application be provided for.
It is buttressed by the Plaintiff's Supporting Affidavit and has the following grounds:-
THAT the Plaintiff is the registered owner of all that parcel of land known as L.R. NO IGOJI/MWERU-11/6 together with all the improvements and Development therein whereas the Defendant owns parcel NO. L.R. IGOJI/MWERU-11/62.
THATthe Plaintiff and the Defendant are neighbours and the Plaintiff has planted many gravellier trees on his parcel which trees are mature.
THATon the 11th day of October 2015 the Defendant unlawfully and without any color of right trespassed upon the Plaintiff's parcel of land and cut down 47 mature gravellier trees and destroyed his barbed wire fence.
THATthe Plaintiff reported the matter to various authorities such as the area Chief, the D.O, the D.C and the Police Vide OB NO. 15/11/10/2015 and the Defendant was arrested and charged at Nkubu Law Courts, in Criminal Case Number 1363 of 2015 with the offence of malicious damage to property.
THATdespite making the said reports the Defendant continues to trespass upon the Plaintiff's land and is continuing to destroy his trees and if not restrained by an order of injunction he will wreck havoc on the Plaintiff's Land.
THATthe situation on the ground is volatile and likely to degenerate into violence if not stopped.
THAT the trees are in the process of being sold and if an injunction is not issued the Plaintiff will continue to suffer loss and damages that cannot be compensated by way of damages.
THATthe Plaintiff pray (sic) that the orders sought are granted forthwith.
Although the Defendant/Respondent had been properly served he failed or refused to appear in Court on 10/2/2016 when the matter was slated for hearing. I, therefore, find it necessary to allow the application in terms of prayers 2,3 and 4.
Costs are awarded to the Plaintiff/Applicant.
It is so ordered.
Delivered in open Court at Meru this 10th day of February, 2016 in the presence of:-
CC: Lilian/Daniel
Joses Kibia for the Applicant
P.M. NJOROGE
JUDGE