[2016] KEHC 6721 (KLR)
The court found that, although the plaintiffs and their advocate failed to attend the scheduled hearing of the injunction application, the interests of justice required that all parties be heard, especially since the 2nd defendant admitted that some plaintiffs reside on the suit land. The court declined to dismiss...
Source-derived case information.
- Citation
- [2016] KEHC 6721 (KLR)
- Parties
- Plaintiff: Jackson Kiogora Gitonga; Plaintiff: Lawrence M. Mbabu; Plaintiff: Mary Eunice Tirindi Teresio; Plaintiff: Rose Caikuthii; Plaintiff: Frankline Mutembei; Defendant: Jacob Muthamia Jediel; Defendant: Jackson Rugendo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 78 of 2015
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application not dismissed; directions issued for hearing by written submissions.
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Injunctive Relief, Land Ownership Disputes, Forcible Entry, Status Quo Orders
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kiogora Gitonga
Plaintiff
Lawrence M. Mbabu
Plaintiff
Mary Eunice Tirindi Teresio
Plaintiff
Rose Caikuthii
Plaintiff
Frankline Mutembei
Plaintiff
Jacob Muthamia Jediel
Defendant
Jackson Rugendo
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of an interlocutory injunction restraining the 2nd defendant from interfering with the suit land pending determination of the suit.
- 2 Whether the plaintiffs are entitled to protection of their possession of the suit land under the doctrine of adverse possession.
- 3 Whether the conduct of the 2nd defendant amounts to unlawful forcible entry and justifies interim relief.
Ratio Decidendi
The court found that, although the plaintiffs and their advocate failed to attend the scheduled hearing of the injunction application, the interests of justice required that all parties be heard, especially since the 2nd defendant admitted that some plaintiffs reside on the suit land. The court declined to dismiss the application for want of prosecution and instead directed that the matter proceed by way of written submissions. The court emphasized the need to maintain the status quo and ensure that the dispute is resolved on its merits after hearing both sides. The orders issued were procedural, aimed at facilitating a fair hearing rather than determining the substantive rights to...
Court Disposition
Application not dismissed; directions issued for hearing by written submissions.
Orders
- Defendants' advocate to serve the court's orders on the plaintiffs' advocate within 10 days.
- Application to be heard by way of written submissions: plaintiffs to file and exchange submissions within 20 days of 17/02/2016; defendants to respond within 10 days after receipt.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ELC CIVIL SUIT NO 78 OF 2015
JACKSON KIOGORA GITONGA.............................................1ST PLAINTIFF
LAWRENCE M.MBABU.........................................................2ND PLAINTIFF
MARY EUNICE TIRINDI TERESIO...........................................3RD PLAINTIFF
ROSE CAIKUTHII....................................................................4TH PLAINTIFF
FRANKLINE MUTEMBEI.........................................................5TH PLAINTIFF
VERSUS
JACOB MUTHAMIA JEDIELAND JACKSON REUGENDO.....DEFENDANTS
R U L I N G
This application is dated 22nd December,2015 and seeks prayers that:-
1. This application be certified urgent, be heard during this Courts vacation and order be granted ex-parte in the first instance.
2. A very urgent order be issued for a period of 14 days only restraining the 2nd defendant, his servants and/or agents or anybody acting by or through him from entering into or remaining onto land parcels No. Igoji/ Mweru 1/1560, 1561 and 1562 or in any way interfering with or alienating the said land parcels pending the hearing of prayer No. 3 below.
3. This Honourable Court be pleased to restrain by an injunction the 2nd defendant his servants and/or agents or anybody acting by or through him from entering into or remaining into land parcels No. Igoji/Mweru 1/1560,1561 and 1562 or in any way interfering with or alienating the said land parcel till this suit is heard and determined.
4. Officer in charge of Kieni Kia Ndege Police Post do enforce the orders of the Court.
5. Costs of this application be provided for.
The Application is supported by the Affidavit of Jackson Kiogora Gitonga, the 1st Plaintiff and has the following grounds:-
1. The Plaintiffs herein are in possession of Land parcels No. IGOJI/MWERU 1/1560, 1561 and 1562 registered in the names of the 2nd Defendant but previously registered in the names of the 1st defendant as Igoji/Mweru/1527.
2. The Plaintiffs have extensively developed the said parcels of land and constructed thereon permanent and semi-permanent structures where they have established their homes and planted subsistence crops and indigenous trees. The Plaintiffs depend entirely on the land for their livelihood and that of their families.
3. The Plaintiffs have filed this suit claiming title by way of adverse possession and accusing the defendants of perpetrating a fraud against them.
4. On 16th December, 2015, the 2nd Defendant came into the land with a large group of unruly characters and purported to take possession of the land but their efforts were thwarted by the Plaintiffs. Then on 21 December, 2015, the 2nd defendant again engaged the same group of thugs and tried to take over by violence but again the Plaintiffs thwarted the effort.
5. That the actions of the 2nd Defendant are unlawful and penal code offences under Section 90 of the Penal Code relating to forcible entry in land. Unless the Court intervenes to maintain the Status Quo the 2nd Defendant is likely to cause a breach of peace or change the fair playing level of the suit.
In the presence of the Advocates representing all the parties, and by Written Consent, the application was given the 17th day of 2016 as the date it would be heard interpartes. On 17/02/2016 the Advocate for the Applicants was not in Court. The applicants were also not in Court. Mr. Muthamia prayed that the application be dismissed for want of prosecution. In my view, this was a reasonable prayer as the hearing date had been agreed upon through a Written Consent.
Mr. Jackson Rugendo, the 2nd Defendant informed the Court that when he purchased the suit land, the 4th Plaintiff Rose Ciakuthii was staying on the land. He also told the Court that Jackson Kiogora Gitonga moved into the land after he bought it. He said that he did not know the other Plaintiffs.
The 1st Defendant was not in Court.
In the Interest of Justice and in view of the fact that the 2nd defendant has told the Court that some of the Plaintiffs live on the suit land, I find it necessary to hear all parties. I issue the following orders:-
1. The Advocate for the Defendants to serve upon the Plaintiffs' Advocate the orders issued by the Court today within 10 days.
2. The application is to be heard by way of Written Submissions with the Plaintiffs filing and exchanging their Submissions within 20 days of 17/02/2016 and the defendants to do so within 10 days after receipt of the Plaintiffs' Submissions.
3. Directions on 21/03/2016.
Written, delivered and Signed in Open Court at Meru this 17th day of February, 2016 in the presence of:-
CC: Daniel/Lilian
Muthamia for the Defendants
P. M. NJOROGE
JUDGE