[2014] KEELC 262 (KLR)
The court found that the parties had entered into a consent on 2/12/2013 for a surveyor to create an access road between their parcels. The surveyor acted in accordance with this consent, and both parties were present during the process without raising any objections. The applicant's subsequent attempt to restrain...
Source-derived case information.
- Citation
- [2014] KEELC 262 (KLR)
- Parties
- Plaintiff: David Kayaja Wafula; Defendant: Joseph Khalea Lusindalo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 102 of 2013
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the plaintiff/respondent
- Judges
- EO Obaga
- Legal Topics
- Injunctive Relief, Access Roads, Consent Orders, Trespass, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kayaja Wafula
Plaintiff
Joseph Khalea Lusindalo
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant/applicant is entitled to an injunction restraining the plaintiff/respondent from creating or using an access road on the suit property.
- 2 Whether the creation of the access road was done in accordance with a consent order between the parties.
- 3 Whether the application for injunction constitutes an abuse of court process.
Ratio Decidendi
The court found that the parties had entered into a consent on 2/12/2013 for a surveyor to create an access road between their parcels. The surveyor acted in accordance with this consent, and both parties were present during the process without raising any objections. The applicant's subsequent attempt to restrain the respondent from creating or using the access road was therefore unfounded, as the road was created by the surveyor pursuant to the parties' agreement, not unilaterally by the respondent. The court held that the applicant, having consented to the creation of the access road, could not later oppose it. The application was deemed to lack merit and was dismissed as an abuse of...
Court Disposition
application dismissed with costs to the plaintiff/respondent
Orders
- The defendant/applicant's application for injunction is dismissed.
- Costs awarded to the plaintiff/respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 102 OF 2013
DAVID KAYAJA WAFULA …............................................ PLAINTIFF
VERSUS
JOSEPH KHALEA LUSINDALO ….................................... DEFENDANT
R U L I N G
The defendant/Applicant filed a notice of motion dated 28/3/2014 in which he seeks an injunction restraining the Plaintiff/Respondent either by himself or through his agents, servants, employees, assigns, representatives or any person claiming through him from encroaching, trespassing, entering, or interfering in any manner whatsoever with the defendant's quiet possession or occupation and use and from creating or using any road access created on parcel of land title No. Kiminini/Matunda Block 7 (Masaba)/159.
The Plaintiff/Respondent had bought two plots one measuring 50 x 100 and another 25 x 100 from the Defendant/Applicant. The applicant now contends that the respondent has trespassed onto his land and started creating a road of access without his permission or consent. It is on this basis that the applicant seeks an injunction restraining the respondent from creating an access road on his land.
The application is opposed by the respondent who contends that this application is brought in bad faith. The respondent further contends that the parties herein consented to sending a surveyor to create an access road. That the surveyor duly proceeded to the ground and created an access road as per the consent. The respondent denies that he is the one who created the road.
I have gone through the applicant's application as well as the opposition to the same by the respondent. The Advocates representing the parties herein agreed to dispose off this application by way of written submissions. I have gone through the submissions filed by the parties. I must say at the outset that this application is an abuse of the process of the court. On 2/12/2013, the parties herein entered a consent in which it was agreed that a surveyor do proceed to the ground and create an access road between parcel Nos. Kiminini/Matunda Block 7 (Masaba)/159 and 158. The surveyor proceeded to the ground and created a 6 metre road of access as required. This was done in the presence of both the applicant and the respondent. No one raised any objection.
After the access road was created, the applicant has come to court seeking to restrain the Plaintiff/Respondent from creating the access road. It is not the respondent who created the access road. It is the surveyor who created the road in accordance with the consent received by the parties herein.The applicant seems to be complaining that the surveyor created a 6 metre wide road on his plot but when he reached the respondent's plot he created a 4 metre wide road. This allegation is only contained in the submissions by the applicant. It was never mentioned in the supporting affidavit of the applicant.
The applicant having consented to creation of the access road cannot again turn round and oppose the same. I find that the applicant's application lacks merits. The same is hereby dismissed with costs to the Plaintiff/Respondent It is so ordered.
Dated, signed and delivered at Kitale on this 28th day of July, 2014.
E. OBAGA
JUDGE
In the presence of Mr Ingosi for defendant and Mr Karani for M/S Arunga for plaintiff. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
28/07/2014