[2021] KEELC 3266 (KLR)
The court found that the plaintiff had demonstrated sufficient grounds for the preservation of the suit land by way of inhibition, pending the inter partes hearing of the application. The plaintiff's claim of adverse possession and apprehension that the defendants may deal with the land to his detriment justified...
Source-derived case information.
- Citation
- [2021] KEELC 3266 (KLR)
- Parties
- Plaintiff: Irvine Mwenda Japhet; Defendant: Wilberfrce Micheni; Defendant: Lisbeth Kaimuri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E003 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Injunction and Inhibition
- Outcome
- Partial grant of ex parte orders; inhibition granted pending inter partes hearing.
- Legal Topics
- Adverse Possession, Injunctive Relief, Land Registration, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irvine Mwenda Japhet
Plaintiff
Wilberfrce Micheni
Defendant
Lisbeth Kaimuri
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Injunction and Inhibition
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of a temporary injunction restraining the defendants from interfering with the suit land.
- 2 Whether an order of inhibition should issue to restrain registration of dealings in respect of the suit land pending hearing and determination of the application.
Ratio Decidendi
The court found that the plaintiff had demonstrated sufficient grounds for the preservation of the suit land by way of inhibition, pending the inter partes hearing of the application. The plaintiff's claim of adverse possession and apprehension that the defendants may deal with the land to his detriment justified the grant of an inhibition order to maintain the status quo. However, the court limited the relief at the ex parte stage to inhibition only, deferring consideration of the temporary injunction and other substantive prayers to the inter partes hearing, thereby balancing the need for urgent preservation with the defendants' right to be heard.
Court Disposition
Partial grant of ex parte orders; inhibition granted pending inter partes hearing.
Orders
- Prayer for inhibition restraining registration of dealings in respect of L.R. NO. MWIMBI/CHOGORIA/4652 is granted pending inter partes hearing.
- Plaintiff to serve the application upon the defendants within 14 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. E003 OF 2021
IRVINE MWENDA JAPHET..............PLAINTIFF
VERSUS
WILBERFRCE MICHENI.......1ST DEFENDANT
LISBETH KAIMURI ..............2ND DEFENDANT
RULING
1. This application states on its face that it has been brought to court pursuant to Section 68(1) of the Land Registration Act, Order 40 Rules 1 & 2 of the Civil Procedure Rules, 2010 and section 63(e) of the Civil Procedure Act.
2. The application seeks the following orders:
1. THATthis application be certified urgent.
2. THAT pending the interpartes hearing of this application an order of temporary injunction do issue restraining the defendants whether by themselves or through their agents, servants, employees, assigns or anybody else acting at their behest and interest from entering, occupying, cultivating, farming, fencing or in any other manner whatsoever interfering with the plaintiff’s peaceful and uninterrupted occupation of L.R. NO. MWIMBI/CHOGORIA/4652.
3. THATpending the intepartes hearing of this application an order of inhibition do issue restraining the registration of dealings in respect of L.R. NO. MWIMBI/CHOGORIA/4652.
4. THAT pending the hearing and determination of this application and the main suit an order of temporary injunction do issue restraining the defendants whether by themselves or through their agents, servants, employees, assigns or anybody else acting at their behest and interest from entering, occupying, cultivating, farming, fencing or in any other manner whatsoever interfering withthe plaintiff’s peaceful and uninterrupted occupation of L.R. NO. MWIMBI/ CHOGORIA/4652.
5. THATpending the hearing and determination of this application and the main suit an order of inhibition do issue restraining the registration of dealings in respect of L.R. NO. MWIMBI/CHOGORIA/4652.
3. The application is buttressed by the affidavit of Irvine Mwenda Japhet sworn on 18th May, 2021 which states;
1. THAT the Defendants/Respondents are the registered owners of the suit land.
2. THAT the Plaintiff/Applicant has been in exclusive occupation of the suit land and has been in such occupation for a period exceeding the statutory twelve (12) years.
3. THAT recently the Defendants have entered the suit land and dug up holes in readiness for planting prompting the Plaintiff to discover that the same had changed ownership.
4. THAT the Plaintiff/Applicant has lodged a claim predicated on the doctrine of adverse possession in respect of the suit land.
5. THAT the Plaintiff/Applicant is apprehensive that the Defendants/Respondents shall deal with the suit land in order to defeat his claim
6. THAT it is thus imperative that the suit land is preserved pending the determination of the issues at variance between the parties.
7. THAT the Plaintiff’s suit has a high chance of success.
8. THAT the Defendants shall not suffer any prejudice or inconvenience if the orders sought are granted.
9. THAT further, the instant orders are sought in order to advance the course of justice.
4. At the exparte stage ONLY prayer 3 for inhibition pending interpartes hearing of this application is granted.
5. The plaintiff is directed to serve the application upon the defendants within 14 days of today.
6. The application will be heard interpartes on 7th June, 2021.
DELIVERED IN CHAMBERS THIS 19TH DAY OF MAY, 2021 IN THE PRESENCE OF:
CA: NDEGWA
P. M. NJOROGE,
JUDGE.