[2011] KEHC 447 (KLR)
The court found that the plaintiffs had demonstrated they had been in occupation and possession of the suit properties for over 15 years, and that their claim for adverse possession raised a prima facie case. The court was satisfied that the plaintiffs faced a real threat of eviction and destruction of their...
Source-derived case information.
- Citation
- [2011] KEHC 447 (KLR)
- Parties
- Plaintiff: Alexander Mbugua; Plaintiff: Mwari Mbugua; Defendant: Beatrice Mutungi M’Tuamikwa; Defendant: Everest Enterprises Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 118 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- temporary injunction granted
- Judges
- CJ Kendagor
- Legal Topics
- Adverse Possession, Injunctive Relief, Land Registration, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Mbugua
Plaintiff
Mwari Mbugua
Plaintiff
Beatrice Mutungi M’Tuamikwa
Defendant
Everest Enterprises Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendants from interfering with their occupation and use of land parcels LAIKIPIA/KALALU/618 and 619 pending the hearing and determination of the suit.
- 2 Whether the plaintiffs have established a prima facie case for adverse possession over the suit properties.
- 3 Whether the plaintiffs will suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiffs had demonstrated they had been in occupation and possession of the suit properties for over 15 years, and that their claim for adverse possession raised a prima facie case. The court was satisfied that the plaintiffs faced a real threat of eviction and destruction of their developments by the defendants, which would cause irreparable harm not compensable by damages. The balance of convenience favoured maintaining the status quo to preserve the subject matter of the suit. Accordingly, the court granted a temporary injunction restraining the defendants from interfering with the plaintiffs' occupation and use of land parcels LAIKIPIA/KALALU/618 and 619...
Court Disposition
temporary injunction granted
Orders
- A temporary injunction is issued restraining the defendants, their workers, agents, servants, contractors or anybody else acting at their behest, direction, contract or employment from entering, occupying or dealing in any manner whatsoever with the plaintiffs' occupation and use of land parcel Nos....
- A temporary injunction is issued restraining the defendants, their workers, agents, servants, contractors or anybody else acting at their behest, direction, contract or employment from entering, occupying, remaining or dealing in any manner whatsoever with the plaintiffs' occupation and use of land parcel Nos....
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HCCC 118 OF 2011 O.S
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CAP 22 SECTION 7 37 & 38.
AND
IN THE MATTER OF REGISTRED LAND ACT CAP 300
IN THE MATTR OF LAND CONTROL ACT CAP 302
IN THE MATTER OF AN APPLICATION BY ALEXANDER MBUGUA AND MWARI MBUGUA UNDER THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA THAT THEY BE REGISTERED AS PROPRIETORS OF LAND PARCEL
NOS. LAIKIPIA/KALALU/618 & 619 MEASURING APPROXIMATELY 30 ACRES OR THEREABOUTS.
AND
FOR A DECLARATION TO THE LAND REGISTRAR UNDER SECTION 30 OF THE REGISTERED LAND ACT TO REGISTER THE APPLICANTS AS THE PROPRIETORS OF LAND PARCEL NOS. LAIKIPIA/KALALU/618 & 619 MEASURING 30 ACRES OR THEREABOUTS.
ALEXANDER MBUGUA………………….................................................………..1ST PLAINTIFF
MWARI MBUGUA……………………...................................................………….2ND PLAINTIFF
VERSUS
BEATRICE MUTUNGI M’TUAMIKWA….................................................……..1ST DEFENDANT
EVEREST ENTERPRISES LTD……..............................................................…2ND DEFENDANT
R U L I N G
This is a Notice of Motion it is dated 23rd August 2011. It has been brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Section 63(e) of the Civil Procedure Act Laws of Kenya and any other enabling provisions of the law. It seeks the following orders:-
1. …
2. That pending the inter-partes hearing of the application, the honourable court be pleased to issue an order of temporary injunction restraining the defendants, their workers, agents, servants, contractors or anybody else acting at their behest, direction, contract or employment from entering, occupying or dealing in any manner whatsoever with the Plaintiffs’ occupation and use of land parcel Nos. LAIKIPIA/KALALU/618 in the Plaintiffs’ possession.
3. That the honourable court be pleased to issue an Order of temporary injunction restraining the Defendants, their workers, agents, servants, contractors or anybody else acting at their behest, direction, contract or employment from entering, occupying, remaining or dealing in any manner whatsoever with the plaintiffs occupation and use of Land parcel Nos. LAIKIPIA/KALALU/618 & 619 in the plaintiff’s possession pending the hearing and determination of this suit.
4. That it is only fair and just that this application be allowed.
The application is supported by the following grounds:-
1. That the plaintiff are entitled by reasons of adverse possession to land parcel Nos. LAIKIPIA/KALALU/618 & 619 which they have been in actual possession and occupation for over 15 years.
2. That the Defendants have illegally and without any colour right and developments thereon encroached upon the suit lands and destroyed the Plaintiffs crops and threatened the Plaintiffs with forcible eviction.
3. That if the Plaintiffs are evicted from the said land which they have greatly developed, they will suffer irreparable loss and damage and this application and indeed the suit herein will be rendered nugatory.
4. That it is only fair and just that this application be allowed.
Dated Signed and delivered at Meru this 19th day of October 2011
LESIIT J.
JUDGE