[2011] KEHC 2027 (KLR)
The court found that the applicant demonstrated a real risk of eviction from the disputed land while her appeal was pending before the Provincial Land Disputes Appeals Committee. The respondent did not file a replying affidavit to challenge the applicant's factual claims, and the court accepted that the applicant...
Source-derived case information.
- Citation
- [2011] KEHC 2027 (KLR)
- Parties
- Applicant: Consolata Wanja Gathua; Respondent: Christopher Ndeti Itule
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 223 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Pending Appeal
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Interlocutory Injunctions, Status Quo Orders, Land Ownership Disputes, Pending Appeal Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Consolata Wanja Gathua
Applicant
Christopher Ndeti Itule
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from evicting her from the disputed land pending appeal.
- 2 Whether the status quo should be maintained pending the determination of the appeal before the Provincial Land Disputes Appeals Committee.
Ratio Decidendi
The court found that the applicant demonstrated a real risk of eviction from the disputed land while her appeal was pending before the Provincial Land Disputes Appeals Committee. The respondent did not file a replying affidavit to challenge the applicant's factual claims, and the court accepted that the applicant was at risk of irreparable harm. The court held that it was necessary to grant a temporary injunction to preserve the status quo and prevent the applicant's eviction until the appeal was determined. The balance of convenience favoured the applicant, and the requirements for granting an interlocutory injunction were satisfied.
Court Disposition
application allowed
Orders
- A temporary order of injunction is issued restraining the respondent from evicting the applicant from LR. No. GATUANYAGA/NGOLIBA/BLOCK 2/322 pending the hearing and determination of the appeal.
- Costs to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC. APPLICATION NO. 223 OF 2011
CONSOLATA WANJA GATHUA............................................................................................APPLICANT
Versus
CHRISTOPHER NDETI ITULE.........................................................................................RESPONDENTS
RULING
The subject matter of this ruling is the Summons dated 22nd November 2010 in which Consolata Wanja Gathua the applicant herein, has applied for issuance of a temporary order of injunction to restrain Christopher Ndeti Itule the respondent herein, from evicting the applicant from LR. No. GATUANYAGA/NGOLIBA/BLOCK 322 pending the hearing and the determination of her appeal before the Provincial Land Disputes Appeals Committee, Nyeri. The applicant filed two affidavits she swore in support of the summons. The respondent filed ground of opposition to resist the motion.
I have considered the grounds set out on the face of the summons plus the facts deponed in the affidavits filed in support. I have also considered the grounds of opposition. The applicant avers that she filed a complaint before the Thika Land Disputes Tribunal claiming to have purchased a parcel of land measuring 1 acres from Kantafu Company Ltd. The applicant was issued with title No. LR. No. GATUANYAGA/NGOLIBA/ BLOCK 2/322 in 1997. She went before the Land Disputes Tribunal seeking for a declaration that the Respondent was a trespasser on the aforesaid land. The complaint was heard and dismissed on 30th March 2010. Being dissatisfied, the applicant filed an appeal before the Nyeri Provincial Land Disputes Appeals Committee. There is evidence that the Provincial Appeals Committee issued a letter to the Respondent directing him to maintain the status quo pending appeal. The applicant has now complained that the Respondent has taken steps to harass her with the intention of evicting her from the land in dispute while her appeal is pending. When confronted with the aforesaid allegations, the respondent simply filed grounds of opposition in which he raised technical issued against the application. He did not file a replying affidavit to controvert the applicant’s averments.
After a careful consideration of the rival submissions I am convinced that there is a real danger that the respondent may evict the applicant from LR. No. GATUANYAGA/NGOLIBA/ BLOCK 2/322 unless he is restrained by an order of injunction. There is no denial that the applicant’s complaint was dismissed by the Thika Land Disputes Tribunal vide Thika Land Case No. 71 of 2009 on 30th March 2010. It is also not disputed that the applicant has filed an appeal before the Central Province Land Disputes Appeal Committee, Nyeri to challenge the decision. The appeal is still pending. In the circumstances of this case there is need to grant the orders sought to maintain the status quo pending the hearing and determination of the appeal.
In the end I find the summons dated 22nd November 2010 to be well founded. The same is allowed as prayed costs abiding the outcome of the Appeal.
Dated and delivered this 8th day of July 2011.
J. K. SERGON
JUDGE
N/A for the parties.
J.K. SERGON
JUDGE