[2018] KEELC 4556 (KLR)
The court found that the plaintiff had demonstrated sufficient grounds for the grant of an inhibition order, as he had been in open and uninterrupted occupation of the suit land for over 20 years and there was a real risk that the defendant, upon being served, might dispose of the property before the suit was heard....
Source-derived case information.
- Citation
- [2018] KEELC 4556 (KLR)
- Parties
- Plaintiff: James Mutugi Mwithi; Defendant: Daniel Mugo Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 225 of 2017
- Procedural Posture
- Originating Summons / Interlocutory Ruling on Interim Applications
- Outcome
- applications allowed
- Legal Topics
- Adverse Possession, Substituted Service, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mutugi Mwithi
Plaintiff
Daniel Mugo Mwangi
Defendant
Procedural Posture
Originating Summons / Interlocutory Ruling on Interim Applications
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for an inhibition order to preserve the suit property pending determination of the suit.
- 2 Whether the plaintiff should be granted leave to serve the Originating Summons by substituted service through newspaper advertisement.
Ratio Decidendi
The court found that the plaintiff had demonstrated sufficient grounds for the grant of an inhibition order, as he had been in open and uninterrupted occupation of the suit land for over 20 years and there was a real risk that the defendant, upon being served, might dispose of the property before the suit was heard. The court also accepted that the plaintiff had made reasonable but unsuccessful efforts to serve the defendant personally, justifying the grant of leave for substituted service by advertisement in a national newspaper. Both applications were therefore allowed, with costs to be in the cause, and the plaintiff was granted 21 days to effect substituted service.
Court Disposition
applications allowed
Orders
- An inhibition order is issued inhibiting the registration of any dealing with land parcel THARAKA/TUNYAI “A”/390 pending hearing and final determination of the suit.
- The plaintiff is granted leave to serve the Originating Summons on the defendant by advertisement in the Daily Nation Newspaper.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 225 OF 2017 (OS)
IN THE MATTER OF LAND PARCEL NUMBER THARAKA/TUNYAI “A”/390
AND
IN THE MATTER OF SECTIONS 7, 37 AND 38 OF THE LIMITATION OF ACTIONS ACT AND ORDER 37 RULE 8 OF THE REGISTERED LAND ACT
BETWEEN
JAMES MUTUGI MWITHI……………………………………….PLAINTIFF
VERSUS
DANIEL MUGO MWANGI………………………………..……DEFENDANT
RULING
1. This application concerns 2 applications both dated 28. 12. 2017. The first one seeks orders:
1. That an inhibition order do issue inhibiting the registration of any dealing with the piece of the land known as THARAKA/TUNYAI “A”/390 pending the hearing and final determination of this suit.
2. That the costs of this application be costs in the cause.
2. It has the following grounds;
1. The parcel of land in question is registered in the name of the defendant.
2. That my family and I have lived on this piece of land openly and quietly for more than 20 years without any interruption by the defendant.
3. That I have therefore acquired title to it by way of adverse possession.
4. That after being served with the papers in this case the defendant might dispose of it before the case is heard. And any other grounds contained in the affidavit of JAMES MUTUGI MWITHI.
3. The 2nd one seeks orders;
a. That the plaintiff/applicant be given leave to serve the Originating Summons in this case on the defendant, Daniel Mugo Mwangi by advertising it once on the Daily Nation Newspaper.
b. That costs of this application be costs in the cause.
4. It has the following grounds:
1. This suit was filed on 5th April, 2017 by my advocates on my instructions.
2. Since filing the same I have made efforts to trace the defendant and have him served with the Originate (sic) Summons, but my efforts have been fruitless.
3. It is imperative that the Originating Summons must be served before this suit is heard, hence the necessity for the order sought.
5. Both applications are allowed with costs to be in the cause.
6. The plaintiff is granted 21 days to serve the defendant by way of substituted service.
7. Directions on 9. 4.2018.
Delivered in open court at Chuka this 13th day of February, 2018 in the presence of:
CA: Ndegwa
Kaai present for the plaintiff/applicant
P.M. NJOROGE,
JUDGE.