[2010] KEHC 4034 (KLR)
The court found that the dispute involves a double allocation of land, with both parties presenting documentary evidence of allocation or sale from different authorities. Recognizing the risk that continued construction by either party could render the appeal nugatory and potentially deprive the successful party of...
Source-derived case information.
- Citation
- [2010] KEHC 4034 (KLR)
- Parties
- Appellant: John Kahwi Kabucho; Respondent: Zakary Muriri Muraya; Respondent: Grace Wanjiru Muriri
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Injunction Pending Appeal
- Outcome
- Application for injunction allowed. Both parties restrained from occupying or constructing on the suit land pending appeal.
- Legal Topics
- Injunctive Relief, Double Allocation, Land Allocation Disputes, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kahwi Kabucho
Appellant
Zakary Muriri Muraya
Respondent
Grace Wanjiru Muriri
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Injunction Pending Appeal
Legal Issues
- 1 Whether a temporary injunction should issue to restrain both parties from construction on the disputed land pending appeal.
- 2 Which authority had the legal right to allocate the suit piece of land: the Government or the Municipal Council of Nyahururu.
Ratio Decidendi
The court found that the dispute involves a double allocation of land, with both parties presenting documentary evidence of allocation or sale from different authorities. Recognizing the risk that continued construction by either party could render the appeal nugatory and potentially deprive the successful party of the subject matter, the court determined that the interests of justice require maintaining the status quo. Accordingly, both parties are restrained from occupying or continuing construction on the disputed land pending the determination of the appeal. The court emphasized that this measure is necessary to prevent irreparable harm and to ensure that the eventual decision on...
Court Disposition
Application for injunction allowed. Both parties restrained from occupying or constructing on the suit land pending appeal.
Orders
- Pending the hearing and determination of this appeal, both parties are hereby restrained from occupying, carrying on or continuing with any construction on the suit piece of land.
- The costs of this application shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 4 of 2009
JOHN KAHWI KABUCHO……..…………...……APPELLANT
VERSUS
ZAKARY MURIRI MURAYA…..………….1ST RESPONDENT
GRACE WANJIRU MURIRI………..……..2ND RESPONDENT
RULING
The appellant is the plaintiff in Nyahururu PMCC No. 176 of 2008. His application for a temporary injunction to restrain the respondents who are the defendants in that case from continuing with construction on the disputed piece of land being Unsurveyed Plot No.A Nyahururu Municipality (the suit piece of land) was dismissed provoking this appeal. Pending the hearing and determination of the appeal he has made a similar application to this court. His case is that he was allocated the suit piece of land by the Commissioner of Lands on 27th July 1999. In 2008 he found the respondents building on it and moved to court to restrain them but his application for injunction was dismissed.
The respondents’ version of the story is that the suit piece of land was sold to them by the Municipal Council of Nyahururu on 21st June 1999.
This appears to be a case of double allocation. The appellant has exhibited a letter of allotment from the Commissioner of Lands allocating the suit piece of land to him. The respondents have also exhibited a copy of the agreement between them and the Municipal Council of Nyahururu showing that the suit piece of land was sold to them by the Council. The main issue in the case therefore is which authority owned the suit piece of land before allocation; was it the Government or the Municipal Council of Nyahururu?
If the respondents are allowed to continue with their construction on the suit piece of land and the issue is eventually determined in favour of the appellant that would deprive him of the suit piece of land. In the circumstances justice demands that the status quo be maintained until this appeal is heard and determined. Consequently I allow this application and order that pending the hearing and determination of this appeal both parties are hereby restrained from occupying, carrying on or continuing with any construction on the suit piece of land. The costs of this application shall abide the outcome of the appeal.
DATED and delivered this 28th day of January 2010.
D. K. MARAGA
JUDGE.