[2015] KEELC 630 (KLR)
The court found that, in the absence of any opposition or justification from the defendants, and given the plaintiff's assertion that the proposed road widening would encroach on his land and cause loss, the balance of convenience favored preserving the status quo. The court was not in a position to determine, at...
Source-derived case information.
- Citation
- [2015] KEELC 630 (KLR)
- Parties
- Plaintiff: Innocent Elias Muchiri Gitonga; Defendant: The County Government of Nyandarua; Defendant: The Land Registrar Nyandarua Land Registry; Defendant: The District Land Surveyor Nyandarua; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 162 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for interlocutory injunction allowed.
- Judges
- MA Silau
- Legal Topics
- Injunctive Relief, Boundary Disputes, Compulsory Acquisition, Land Registration
- 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
Innocent Elias Muchiri Gitonga
Plaintiff
The County Government of Nyandarua
Defendant
The Land Registrar Nyandarua Land Registry
Defendant
The District Land Surveyor Nyandarua
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from interfering with the boundaries of the suit land pending hearing and determination of the suit.
- 2 Whether the proposed road widening will encroach upon the plaintiff's land and cause irreparable loss.
Ratio Decidendi
The court found that, in the absence of any opposition or justification from the defendants, and given the plaintiff's assertion that the proposed road widening would encroach on his land and cause loss, the balance of convenience favored preserving the status quo. The court was not in a position to determine, at this interlocutory stage, whether the road would actually encroach on the plaintiff's land, but considered that the plaintiff stood to suffer loss if the injunction was not granted and the road works proceeded. Therefore, the application for an injunction was allowed to prevent possible irreparable harm until the substantive issues could be determined at trial.
Court Disposition
Application for interlocutory injunction allowed.
Orders
- The defendants are restrained from interfering with the existing boundaries of the plaintiff's land pending hearing and determination of the suit.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 162 OF 2014
INNOCENT ELIAS MUCHIRI GITONGA……..PLAITNIFF
VERSUS
THE COUNTY GOVERNMENT OF NYANDARUA
COUNTY.............................................…1ST DEFENDANT
THE LAND REGISTRAR NYANDARUA LAND
REGISTRY………….……………….………….2ND DEFENDANT
THE DISTRICT LAND SURVEYOR
NYANDARUA…………………………..….……3RD DEFENDANT
THE HON. ATTONERY GENERAL …...4TH DEFENDANT
RULING
1. This suit was commenced by way of plaint filed on 10 June 2014. The plaintiff is the legal administrator of the estate of the late Naomi Wairimu Gitonga under whose name the land parcel Nyandarua/Ol Joro Orok Salient/1105 (the suit land) is registered. This land borders the Bridge Hills Girls-Gatimu Secondary School Road. It is pleaded that the Government issued notices in 2011 and 2012 that it would seek the reclamation/widening of this road. It is the plaintiff's case that the intended action will encroach into the suit land by about 0. 3 acres which will have the effect of reducing the acreage. It is also the plaintiff's case that on the ground the land is only about 5. 55 acres yet in the title deed and RIM, it is 6. 93 acres. In the suit, the plaintiff has sought orders to restrain the defendants from effecting the widening of the Bridge Hills Girls- Gatimu Secondary School Road or in any other way encroaching onto the suit land. He also wants a declaration that his land is under-size and an order for comprehensive re-surveying of the area bordering the suit land so as to establish where the correct boundaries are. In the alternative he seeks compensation for the missing acreage at market rates.
2. Together with the plaint, the plaintiff filed an application for injunction to stop any interference with the existing boundaries of his land, pending hearing of the suit. The reason for seeking the injunction is that the defendants intend to proceed with the widening of the road despite the plaintiff's plea that the same will encroach into his land.
3. None of the defendants filed any document to oppose the application. On the day of the hearing of the application on 17 February 2015, Mr. Mbaka of the State Law Office for the 2nd, 3rd and 4th respondents stated that they do not wish to oppose the application. Mr. Cheruiyot holding brief for Mr. Gachiengo for the 1st respondent, sought an adjournment inter alia on the grounds that Mr. Gachiengo was yet to get instructions in the matter. I declined to grant the adjournment since on 20 November 2014, I allowed Mr. Gachiengo an adjournment on similar reasons. Mr. B.N. Kipkoech for the applicant urged me to allow the application as one that was unopposed.
4. I have considered the application. The plaintiff's case is that the proposed widening of the road will encroach into his land. I cannot tell from the material before me whether or not the widening of the road will actually encroach into the plaintiff's land. The defendants have not been helpful as they have not tabled any material to justify why they want the road widened as intended. I guess the issue of whether the road encroaches into the plaintiff's land or not will be an issue to be determined at the trial and I hesitate to make any preliminary pronouncements at this stage.
5. But it is my view that the balance of convenience tilts in having the land of the plaintiff un-interfered with, until the case is heard and determined, for if it happens that the proposed road will encroach into his land, the plaintiff stands to suffer loss.
6. I therefore allow the application. Costs will be in the cause.
It is so ordered.
Dated, signed and delivered in open court at Nakuru this 19th day of February 2015
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of :-
Mr Biko holding brief for Ms. Fatma Ali for plaintiff
Mr Mbaka present for 2nd - 4th defendants
M/s Gachiengo Gitau for 1st defendant – Absent
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU