[2010] KEHC 3913 (KLR)
The court declined to grant the injunctive orders because the land parcels the applicant sought to preserve were not the subject matter of the suit as per the pleadings, which referenced a different parcel (Magumoni/Thuita/648). The applicant had not amended the pleadings to include the new parcels. Furthermore, the...
Source-derived case information.
- Citation
- [2010] KEHC 3913 (KLR)
- Parties
- Plaintiff: David Ireri Rutere; Defendant: M’Ringata M’Ngurukia
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 85 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Injunctive Relief, Adverse Possession, Land Parcel Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Ireri Rutere
Plaintiff
M’Ringata M’Ngurukia
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to injunctive orders to preserve the specified land parcels pending determination of the suit.
- 2 Whether the respondent has committed acts of destruction or interference with the applicant's property.
- 3 Whether the land parcels sought to be preserved are the subject matter of the suit.
Ratio Decidendi
The court declined to grant the injunctive orders because the land parcels the applicant sought to preserve were not the subject matter of the suit as per the pleadings, which referenced a different parcel (Magumoni/Thuita/648). The applicant had not amended the pleadings to include the new parcels. Furthermore, the applicant failed to establish that the respondent had committed any acts of destruction or interference with his property or satisfied the legal requirements for an injunction as set out in Grella vs Cassman Brown. Therefore, the application for injunctive relief was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 12/11/2009 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 85 of 2007
DAVID IRERI RUTERE…………………………………………………..PLAINTIFF
VERSUS
M’RINGATA M’NGURUKIA……………………………………………DEFENDANT
R U L I N G
The Applicant is seeking injunctive orders against the respondent vide his application dated 12/11/2009. He is asking the court to preserve his land parcels Nos. MAGUMONI/THUITA/1539, 1537, 1538 and 1536 respectively pending the hearing and determination of this suit. The same is supported by the one ground on its face and on his supporting affidavit dated 12/11/2009. He claims that the respondent has been destroying temporary buildings thereon, has been cutting down coffee stems and harvesting bananas and tea leaves.
On his part, the respondent has denied committing any such acts of wanton destruction of the applicant’s property. He maintains that he has only cultivated the 3 acres on which he has staked his claim for adverse possession.
Having considered the application the rival affidavits and the submissions by both counsel in court, I have arrived at the following findings:-
That the parcels of land the applicant is asking the court to preserve are actually not the parcels claimed in the pleadings herein. The suit is in respect of land parcel No. Magumoni/Thuita/648. The pleadings herein have not been amended to bring on board the changes on the land parcels in question. The court would not therefore interfere with land which is not the subject matter before it.
Secondly, the applicant has not established before this court that indeed the Respondent has destroyed any of his property or that he has interfered with any of his land outside the 3 acres which he is claiming by way of adverse possession. The applicant has not satisfied any of the ingredients of an injunction as laid down in the Grella vs Cassmen Brown case. He has not established at all that the respondent is interfering with his property in any way.
I decline to grant the orders sought and dismiss the application dated 12/11/2009 with costs to the Respondent therein.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 15th day of Feb 2010
In presence of:-