[2021] KEELC 4476 (KLR)
The court found that, despite the absence of the parties at the scheduled hearing, it was necessary to preserve the suit property pending the determination of the petition. The applicant had demonstrated that there was a real risk of alienation of the property, which could defeat his interests if not restrained. The...
Source-derived case information.
- Citation
- [2021] KEELC 4476 (KLR)
- Parties
- Applicant: Daniel Mutegi Mwenda; Respondent: John Kathenya Kaibiru; Respondent: The Cabinet Secretary, Lands and Physical Planning (sued through the Deputy County Commissioner – Tharaka Sub County); Respondent: The District Land Registrar (Tharaka Sub County); Respondent: The District Land Surveyor (Tharaka Sub County); Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E001 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Inhibition Order
- Outcome
- Interlocutory inhibition order granted; no order as to costs.
- Legal Topics
- Inhibition Orders, Land Alienation, Illegal Subdivision, Protection of Property Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mutegi Mwenda
Applicant
John Kathenya Kaibiru
Respondent
The Cabinet Secretary, Lands and Physical Planning (sued through the Deputy County Commissioner – Tharaka Sub County)
Respondent
The District Land Registrar (Tharaka Sub County)
Respondent
The District Land Surveyor (Tharaka Sub County)
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Inhibition Order
Legal Issues
- 1 Whether an order of inhibition should be granted to preserve LR NO. North Tharaka/Marimanti/3342 pending the hearing and determination of the petition.
- 2 Whether the applicant has demonstrated sufficient grounds for the preservation of the suit property.
Ratio Decidendi
The court found that, despite the absence of the parties at the scheduled hearing, it was necessary to preserve the suit property pending the determination of the petition. The applicant had demonstrated that there was a real risk of alienation of the property, which could defeat his interests if not restrained. The court exercised its discretion to grant an inhibition order to prevent any dealings with LR NO. North Tharaka/Marimanti/3342 until the petition is heard and determined. The court declined to award costs due to the non-attendance of both parties at the hearing.
Court Disposition
Interlocutory inhibition order granted; no order as to costs.
Orders
- An order of inhibition is granted upon LR NO. North Tharaka/Marimanti/3342 to prevent any subdivision, partition, transfer, alienation or any dealing whatsoever with the same pending the hearing and determination of the petition.
- No order as to costs.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CONSTITUTIONAL PETITION NO. E001 OF 2020
IN THE MATTER OF ARTICLE 22, (3), 23 AND 165 (3) (b) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CONSTITUTION OF RULES UNDER ARTICLES 40 AND 47 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES, 2013.
BETWEEN
DANIEL MUTEGI MWENDA............................................................PETITIONER
VERSUS
JOHN KATHENYA KAIBIRU.................................................1ST RESPONDENT
THE CABINET SECRETARY, LANDS AND
PHYSICAL PLANNING – (SUED THROUGH
THE DEPUTY COUNTY COMMISSIONER –
THARAKA SUB COUNTY).......................................................2ND RESPONDENT
THE DISTRICT LAND REGISTRAR
(THARAKA SUB COUNTY)...................................................3RD RESPONDENT
THE DISTRICT LAND SURVEYOR
(THARAKA SUB COUNTY)..................................................4TH RESPONDENT
THE HON. ATTORNEY GENERAL........................................5TH RESPONDENT
RULING
1. This application is dated 25th November, 2020. The application seeks the following orders:
1. This application be certified urgent and service thereof be dispensed with in the first instance.
2. There be an order of inhibition upon LR NO. North Tharaka/Marimanti/3342 to prevent any subdivision, partition, transfer, alienation or any dealing whatsoever with the same pending the inter-parties hearing and determination of this application.
3. There be an order of inhibition upon LR No. North Tharaka/Marimanti/3342 to prevent any sub division, petition, transfer, alienation or any dealing whatsoever with the same pending the hearing and trial determination of this petition.
4. Costs for this application be provided for.
5. The court do make any other or such better orders which it may deem fit to grant in the circumstances.
2. The application has the following grounds:
i) The subject matter is in danger of alienation since the 1st respondent is in the process of disposing it by sale to third parties.
ii) The 1st respondent has continuously invoked the illegal title of the suit land to harass the petitioner/applicant by placing unfounded allegations to the OCS (Marimanti Police Station) that the applicant is maliciously damaging properties on the suit land.
iii) If the suit land is alienated, the interests of the applicant over the same will be defeated and/or seriously compromised.
iv) Notwithstanding that the suit land is an offshoot of the illegal partition of LR NO. North Tharaka/Marimanti/1764, there has been no physical subdivision on the ground but the 1st respondent is using the alleged subdivision to unlawfully harass the petitioner/applicant.
3. All parties were represented on 15th December, 2020 when the matter was fixed to be heard interpartes on 26th January, 2021.
4. The parties were not in court on 26th January, 2021.
5. I note that prayer 1 in the application is spent.
6. Although the parties did not come to court on 26th January, 2021, I find it necessary to have the suit property preserved pending hearing and determination of this petition.
7. As the parties were not in court when this application was slated to be heard, I issue no order as to costs regarding this application.
8. In the circumstances, prayer 3 in the application is granted.
9. Parties will come to court for directions on 2nd March, 2021.
10. Orders accordingly.
Delivered in open court at Chuka this 8th day of February, 2021in the presence of:
CA: Ndegwa
Parties not in court
HON. JUSTICE (Dr.) P. M. NJOROGE,
ELC JUDGE.