[2017] KEELC 1907 (KLR)
The court found that the plaintiffs had demonstrated long-standing occupation of the suit land, supported by documentary evidence dating back to 1979, and that their claim for adverse possession was not defeated by the procedural choice of commencing the suit by plaint rather than originating summons. The court held...
Source-derived case information.
- Citation
- [2017] KEELC 1907 (KLR)
- Parties
- Plaintiff: Esther Kamene Kimanthi; Plaintiff: Lydia Katilo Mulwa; Defendant: Chrispus Makau Kiamba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 13B of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Application for temporary injunction allowed.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Interlocutory Injunctions, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kamene Kimanthi
Plaintiff
Lydia Katilo Mulwa
Plaintiff
Chrispus Makau Kiamba
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendant from dispossessing or alienating land parcel L.R. No. 337/1130 pending determination of the main suit.
- 2 Whether the plaintiffs have demonstrated a prima facie case for adverse possession and risk of irreparable harm if evicted before trial.
- 3 Whether procedural defects in commencing the suit by plaint rather than originating summons are fatal to the plaintiffs' claim.
Ratio Decidendi
The court found that the plaintiffs had demonstrated long-standing occupation of the suit land, supported by documentary evidence dating back to 1979, and that their claim for adverse possession was not defeated by the procedural choice of commencing the suit by plaint rather than originating summons. The court held that, in line with Article 159(2)(d) of the Constitution and the Civil Procedure Act, substantive justice should prevail over procedural technicalities. The court further determined that the plaintiffs would suffer irreparable harm if evicted before the main suit was heard, justifying the grant of a temporary injunction to preserve the status quo pending determination of the...
Court Disposition
Application for temporary injunction allowed.
Orders
- A temporary injunction is issued restraining the defendant, his agents, servants, or anyone claiming through him from dispossessing or alienating the plaintiffs from land parcel L.R. No. 337/1130 within Athi River pending hearing and determination of the main suit.
- Costs of the application to be provided for.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 13B OF 2014
ESTHER KAMENE KIMANTHI ............................1ST PLAINTIFF
LYDIA KATILO MULWA ......................................2ND PLAINTIFF
VERSUS
CHRISPUS MAKAU KIAMBA ................................DEFENDANT
RULING
1. In the Notice of Motion dated 11th February, 2014, the Plaintiffs are seeking for the following orders:
a. That pending the hearing and determination of the main suit, a temporary injunction do issue restraining the Defendant/Respondent by himself, his agent, servants or anybody claiming through him from dispossessing or alienating the Plaintiffs/Applicants from land parcel L.R. No. 337/1130 within Athi River.
b. That the costs of this Application be provided for.
2. The Application is premised on the grounds that the Plaintiffs have been residing on the suit land for gain for over thirty (30) years; that the occupation of the land by the Plaintiffs has been open and as of right and that the Defendant has unlawfully moved to fence the land and destroyed the residence and the property of the Plaintiffs.
3. According to the deposition of the 1st Plaintiff, she settled on a parcel of land number L.R. No. 337/1410 Athi River with her husband in 1977; that the said land was sub-divided to create L.R. No. 337/1130; that her family together with the 2nd Plaintiff’s family have developed the suit land and that they have been cultivating the land as members of Horticultural Co-operative Union Limited without any interruption.
4. According to the Plaintiffs, the Defendant’s previous effort to throw them out of the land was halted by the court in HCCC. No. 140 of 2011.
5. The Defendant filed Grounds of Opposition in which he averred that the Application is premised on a suit that does not disclose a cause of action; that the Defendant is mis-suited and that from the pleadings, it is the Defendant who is in possession of the land.
6. In his submissions, the Plaintiffs’ advocate submitted that his clients have been in occupation of the land since 1977; that L.R. No. 337/1410 was mysteriously sub-divided into several portions including L.R. No. 337/1130 and that in HCCC No. 140 of 2011, Dulu J acknowledged the Applicants’ occupation of L.R No. 337/1410.
7. The Defendant’s advocate on the other hand submitted that HCCC No. 140 of 2011 refers to L.R. No. 337/3080; that the dispute in that matter is still pending and that the squatters who were on the suit land were relocated.
8. The Defendant’s counsel submitted that the pleadings as filed by the Plaintiffs are defective because they offend the provisions of Order 37 Rule 7 of the Civil Procedure Rules and that the Plaintiffs have not demonstrated how they have been on the land for more than twelve (12) years.
9. The Plaintiffs’ claim is that they have been on the suit land for more than twelve (12) years.
10. Ordinarily, suits for a claim of adverse possession are commenced by way of an Originating Summons. However, the mere fact that the Plaintiffs have commenced their claim by way of a Plaint is not fatal in view of the provisions of Article 159 (2) (d) of the Constitution and Sections 1A and B of the Civil Procedure Act.
11. According to those provisions, justice should be administered without undue regard to procedural technicalities.
12. The Plaintiffs have deponed that they have been in occupation of the land for over thirty (30) years. Indeed, the Applicants have annexed on their Affidavit receipts dating way back to 1979 showing how they used to cultivate the suit land and deliver beans to the Horticultural Co-operative Union Limited.
13. Having shown that they have always been on the suit land, the Plaintiffs should be allowed to continue occupying the suit land pending the hearing and determination of their claim.
14. Indeed, if the Plaintiffs are evicted from the suit land before the suit is heard, they will suffer irreparable damage because they will have been evicted from their place of abode at an interlocutory stage.
15. It is for those reasons that I allow the Application dated 11th February, 2014 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2017.
O. A. ANGOTE
JUDGE