[2016] KEHC 6741 (KLR)
The court found that the plaintiffs had established a prima facie case for the grant of a temporary injunction, as they demonstrated ownership of the land by customary law tenure and ongoing interference by the defendants. The defendants' repeated failure to file submissions, despite being granted extensions, left...
Source-derived case information.
- Citation
- [2016] KEHC 6741 (KLR)
- Parties
- Plaintiff: Bernard Njeru Kabunga; Plaintiff: Zakayo Kithuka Kathiga; Defendant: Justus Kirugi Inchunga; Defendant: Jacob Nthiga Ruaria; Defendant: Judith Kairo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 265 of 2013
- Procedural Posture
- Land and Environment Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Customary Land Tenure, Interlocutory Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Njeru Kabunga
Plaintiff
Zakayo Kithuka Kathiga
Plaintiff
Justus Kirugi Inchunga
Defendant
Jacob Nthiga Ruaria
Defendant
Judith Kairo
Defendant
Procedural Posture
Land and Environment Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendants from entering, cultivating, or planting on the disputed land pending determination of the suit.
- 2 Whether the defendants' failure to file submissions as ordered by the court affects the outcome of the application.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case for the grant of a temporary injunction, as they demonstrated ownership of the land by customary law tenure and ongoing interference by the defendants. The defendants' repeated failure to file submissions, despite being granted extensions, left the plaintiffs' application unopposed. The interlocutory injunction previously granted by consent had served the parties well, and there was no reason to disturb it. Accordingly, the court allowed the plaintiffs' application and granted the temporary injunction as sought in prayer C, restraining the defendants from entering, cultivating, or planting on the disputed land pending...
Court Disposition
application allowed
Orders
- A temporary order of injunction is issued restraining the defendants, their agents, assignees, or persons acting on their behalf from entering, cultivating, or planting on the plaintiffs' land parcel measuring approximately 80 acres pending hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENTAL COURT AT MERU
E&L CASE NO 265 OF 2013
BERNARD NJERU KABUNGA..............................................................1ST PLAINTIFF
ZAKAYO KITHUKA KATHIGA.................................................................2ND PLAINTIFF
VERUS
JUSTUS KIRUGI INCHUNGA..........................................................1ST DEFENDANT
JACOB NTHIGA RUARIA................................................................2ND DEFENDANT
JUDITH KAIRO.................................................................................3RD DEFENDANT
R U L I N G
This application is dated 1st October, 2013 and seeks orders:-
THAT, this Honourable Court be pleased to certify this application as urgent and dispense with its service in the 1st instance.
THAT,this Honourbale Court be pleased to issue a temporary order of Injunction restraining the Defendants their agents, assignees and or people acting on their behest from entering, cultivating, planting the plaintiff's Land Parcel measuring approximately 80 Acres which Land has clear boundaries on the ground pending hearing of this application interparties.
THAT, this Honourable Court be pleased to issue a temporary order of Injunction restraining the Defendants their agents, assignees and or people acting on their behest from entering, cultivating planting the Plaintiff's land Parcel measuring approximately 80 acres which land has clear boundaries on the ground pending hearing and determination of this suit.
THAT, this Honourable Court be pleased to issue other further orders to meet the ends of justice.
The application is supported by the Affidavit of Bernard Njeru Kabunga and has the following grounds:
The Land measuring approximately 110 Acres belongs to the Plaintiffs/Applicants by Customary Law Tenure.
That the Defendants invaded the said Land and started cultivating without the Plaintiffs consent.
That the Defendants have harvested whatever produce was grown last season and another season of cultivation is approaching.
That the Plaintiffs have no place to cultivate and feed their families.
On 25th March, 2014, the parties, by Consent, asked the Court to allow prayer a. This position has remained valid for over 2 years.
On 7th October,2014, the parties resolved, by Consent, to have the Application canvassed by way of Written Submissions with the Plaintiffs doing so within 21 days of that day. The Defendants were to do so within 21 days after receipt of the Plaintiffs' Submissions.
The Plaintiffs filed their Submissions but the Defendants did not do so. The Defendants, on 16/12/2014 sought 21 days to file their submissions. They were allowed to do so. But they did not file their Submissions.
I note that the Interlocutory Order of Injunction granted by Consent, on 7th October, 2014 has served the parties well, so far . As it is clear that the Defendants have refused and/or failed to file their Submissions as ordered by the Court at least two times, I find it meritorious to allow the Plaintiffs' application dated 1st October, 2013, The application is hereby allowed. For avoidance of doubt, Prayer C is allowed. Costs shall be in the cause.
It is so ordered.
Delivered in open Court at Meru this 15th day of February, 2016 in the presence of:-
CC: Daniel/Lilian
Thangicia h/b Ondari for the Plaintiffs.
P. M. NJOROGE
JUDGE