[2021] KEELC 1059 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of a temporary injunction. The plaintiff demonstrated lawful acquisition and registration of the suit property, supported by a title deed and corroborated by the relevant land adjudication authorities. The defendants failed to file...
Source-derived case information.
- Citation
- [2021] KEELC 1059 (KLR)
- Parties
- Plaintiff: Cornelius Muthuri Mwega; Defendant: Stanely Kailutha; Defendant: Kanyili Francis; Defendant: Bernard Kimathi; Defendant: Geoffrey Aburuki; Defendant: Joseph Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E015 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Legal Topics
- Injunctive Relief, Land Ownership, Title Registration, Quiet Enjoyment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cornelius Muthuri Mwega
Plaintiff
Stanely Kailutha
Defendant
Kanyili Francis
Defendant
Bernard Kimathi
Defendant
Geoffrey Aburuki
Defendant
Joseph Mugambi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of a temporary injunction against the defendants.
- 2 Whether the plaintiff's rights to quiet enjoyment and occupation of the suit property have been violated.
- 3 Whether the plaintiff's title to the suit property is prima facie evidence of ownership under Section 26 of the Land Registration Act.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of a temporary injunction. The plaintiff demonstrated lawful acquisition and registration of the suit property, supported by a title deed and corroborated by the relevant land adjudication authorities. The defendants failed to file any response or challenge to the plaintiff's evidence or the manner of acquisition and registration. The court held that the plaintiff's rights under Article 40 of the Constitution and Section 26 of the Land Registration Act had been violated by the defendants' interference. Accordingly, the court granted the temporary injunction as sought, pending the hearing and determination...
Court Disposition
application allowed
Orders
- Temporary injunction granted restraining the defendants from entering, trespassing, cultivating, alienating, constructing or interfering with the plaintiff’s quiet enjoyment, use and occupation of Parcel No. Ruiri/Rwarera/2247 pending hearing and determination of the suit.
- Sub-County police commander Buuri West to enforce compliance with the order.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE E015 OF 2021
CORNELIUS MUTHURI MWEGA.......................................................PLAINTIFF
VERSUS
STANELY KAILUTHA................................................................. 1ST DEFENDANT
KANYILI FRANCIS.................................................................... 2ND DEFENDANT
BERNARD KIMATHI ................................................................ 3RD DEFENDANT
GEOFFREY ABURUKI.............................................................. 4TH DEFENDANT
JOSEPH MUGAMBI....................................................................5TH DEFENDANT
RULING
1. The notice of motion dated 21. 4.2021 seeks temporary orders of injunction barring and restraining the respondents from entering, trespassing, cultivating, alienating, constructing or in any other way whatsoever interfering with the plaintiff’s quiet enjoyment use and occupation of Parcel No. Ruiri/Rwarera/2247 pending hearing and determination of this suit.
2. The second prayer is that sub-County police commander Buuri West to enforce compliance with the order.
3. The application is supported by grounds on the face of the notice of motion and a supporting affidavit by Cornelius Muthuri Mwega sworn on 25th April, 2021.
4. The application was duly served upon the respondents but no replying affidavit or grounds of opposition have been filed. In Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others [2003] eKLR the Court of Appeal held a prima facie case is established if on the material prosecuted points the court conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.
5. Turning to the instant application, the applicant has narrated he acquired the suit property for value through purchase on 8. 10. 2013 from the estate of the late Justus Mbaabu M’Mwithimbu, subsequent to which he was adjudicated the land as per the Sub-County Land Adjudication & Settlement officer Imenti North/South/Central and Buuri’s letter dated 26th August, 2019; the applicant has also attached a copy of a title issued on 9th January, 2019 which under Section 26 of the Land Registration Act 2012, is a prima facie evidence on ownership.
6. There is no replying or defence to the suit by the defendants questioning the manner of acquisition and registration of the suit land in favour of the applicant.
7. In the circumstances it is my considered view the rights of the applicant under Article 40 of the Constitution as read together with Order 40 of the Civil Procedure Rules have been violated. The application is allowed in terms of prayer No’s 3 & 4 pending hearing and determination of this suit. The suit is listed for pretrial directions within 45 days from the date hereof otherwise the orders shall automatically lapse.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 10TH DAY OF NOVEMBER, 2021
In presence of:
Ashaba holding brief for E.G. Mutuma for applicant
Court Clerk: Kananu
HON. C.K. NZILI
ELC JUDGE