[2021] KEELC 439 (KLR)
The court found that the applicant had demonstrated a long period of occupation (over 37 years) and that both the company records and the respondents' affidavits confirmed his right to be on the land. The court was satisfied that the applicant met the legal threshold for the grant of a temporary injunction as set...
Source-derived case information.
- Citation
- [2021] KEELC 439 (KLR)
- Parties
- Plaintiff: Betha Ndumba M'Twaruchiu; Defendant: Paul Wambugu Wachira; Defendant: Mwichwiri Two Farmers Company Ltd (Two)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 63 of 2000
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction allowed.
- Legal Topics
- Injunctions, Eviction, Land Ownership, Occupation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Betha Ndumba M'Twaruchiu
Plaintiff
Paul Wambugu Wachira
Defendant
Mwichwiri Two Farmers Company Ltd (Two)
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to temporary injunctive relief to prevent eviction from the suit land pending hearing and determination of the suit.
- 2 Whether the applicant has established a prima facie case with a probability of success as required for grant of injunctions.
Ratio Decidendi
The court found that the applicant had demonstrated a long period of occupation (over 37 years) and that both the company records and the respondents' affidavits confirmed his right to be on the land. The court was satisfied that the applicant met the legal threshold for the grant of a temporary injunction as set out in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR. The court further ordered the applicant to file an undertaking as to costs and damages and allowed the filing of a further amended defence and counterclaim. The matter was transferred to the ELC Nanyuki for further disposal, given the location of the suit land.
Court Disposition
Application for temporary injunction allowed.
Orders
- Application dated 14.11.2021 allowed in terms of prayers 2, 4 & 6.
- Further amended defence and counterclaim to be filed and served within 14 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC NO. 63 OF 2000
BETHA NDUMBA M’TWARUCHIU........................................................PLAINTIFF
VERSUS
PAUL WAMBUGU WACHIRA........................................................1ST DEFENDANT
MWICHWIRI TWO FARMERS COMPANY LTD (TWO)........ 2ND DEFENDANT
RULING
1. The applicant came under certificate of urgency seeking temporary orders of injunction on the basis that he risks eviction yet he has been on the suit land for over 37 years together with his family.
2. The court ordered the two respondents to be served for interpartes hearing on 14. 12. 2021.
3. The plaintiff has filed a replying affidavit sworn on 10. 12. 2021 while the 2nd intended defendant has entered appearance and filed a replying affidavit sworn on 14. 12. 2021.
4. In the said affidavit, Silas Mungatia and his co-directors admit Paul Wambugu Wachira bought land from their member one Francis Mwai Kangangi and confirm he has lived there and is rightfully on his land as per their records.
5. The court is alive to the ruling delivered on 3. 5.2021 in which the applicant was allowed to be joined in the suit and the decree reviewed and or set aside.
6. Similarly he has attached copies of recent searches and a draft proposed further amended defence and counterclaim.
7. Counsel for the respondent Mr.Orimba has also confirmed the applicant/defendant is in occupation. In my view the applicant has met the threshold for the grant of temporary orders as per MraoLtd v First American Bank ofKenyaLimited and 2 Others [2003] eKLR.
8. In the premises I allow the application dated 14. 11. 2021 in terms of prayers 2, 4 & 6. The further amended defence and counterclaim be filed and served within 14 daysfrom the date hereof.
9. The applicants/defendants to file an undertaking as to costs and damages to the tune of Kshs. 1,000,000/= within 7 days from the date hereof.
10. Given the suit land is situated in Laikipia, I order the file be transferred to the ELC Nanyuki for disposal and further orders.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 14TH DAY OF DECEMBER, 2021
In presence of:
Mr. Mwanzia for applicant
Orimbo for respondents
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE