[2014] KEHC 6134 (KLR)
The court found that the respondents, having been duly served, failed to appear or oppose the application for preservatory orders. In the absence of opposition and given the urgency and nature of the relief sought, the court was satisfied that the applicants had established a prima facie case warranting the grant of...
Source-derived case information.
- Citation
- [2014] KEHC 6134 (KLR)
- Parties
- Applicant: Joseph M'Ethara; Applicant: Silas Kirea M'Ethara; Respondent: District Land Adjudication and Settlement Officer Tigania West; Respondent: Attorney General; Respondent: Mungania Mwitari; Respondent: M'Kubania Kiuga; Respondent: Jacob Kimathi; Respondent: Francis Kubania; Respondent: Shadrack Kanampiu; Respondent: Bernard Gatimba
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 182 of 2011
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Preservatory Orders
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Preservatory Orders, Temporary Injunctions, Quiet Possession, Land Adjudication, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph M'Ethara
Applicant
Silas Kirea M'Ethara
Applicant
District Land Adjudication and Settlement Officer Tigania West
Respondent
Attorney General
Respondent
Mungania Mwitari
Respondent
M'Kubania Kiuga
Respondent
Jacob Kimathi
Respondent
Francis Kubania
Respondent
Shadrack Kanampiu
Respondent
Bernard Gatimba
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Preservatory Orders
Legal Issues
- 1 Whether the petitioners are entitled to preservatory orders restraining the respondents from interfering with their quiet possession of the subject parcels of land pending determination of the petition.
- 2 Whether the respondents should be penalized for disobedience of court orders.
Ratio Decidendi
The court found that the respondents, having been duly served, failed to appear or oppose the application for preservatory orders. In the absence of opposition and given the urgency and nature of the relief sought, the court was satisfied that the applicants had established a prima facie case warranting the grant of temporary injunctions to preserve the subject matter of the dispute. The court further emphasized the importance of compliance with court orders and issued a penal warning regarding contempt. The application was therefore allowed as prayed, with costs to be in the cause.
Court Disposition
application allowed
Orders
- Preservatory orders granted restraining the 1st, 3rd, 4th, 5th, 6th, 7th, and 8th respondents from entering, interfering with the applicants' quiet possession, evicting, changing registration status, or carrying out a fresh survey of the subject parcels of land until the petition is heard and determined.
- Penal warning issued to the respondents regarding contempt of court in case of disobedience.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
PETITION NO. 182 OF 2011
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS QUARANTEED THE CONSTITUTION OF KENYA
BETWEEN
JOSEPH M'ETHARA..................................................................1ST PETITIONER
SILAS KIREA M'ETHARA...........................................................2ND PETITIONER
AND
1. DISTRICT LAND ADJUDICATION AND SETTLEMENT
OFFICER TIGANIA WEST.......................................................1ST RESPONDENT
2. ATTORNEY GENERAL.........................................................2ND RESPONDENT
3. MUNGANIA MWITARI..........................................................3RD RESPONDENT
4. M'KUBANIA KIUGA..............................................................4TH RESPONDENT
5. JACOB KIMATHI.................................................................5TH RESPONDENT
6. FRANCIS KUBANIA.............................................................6TH RESPONDENT
7. SHADRACK KANAMPIU......................................................7TH RESPONDENT
8. BERNARD GATIMBA...........................................................8TH RESPONDENT
RULING
This application is dated 14th February, 2014.
It seeks orders:
(a) THAT this court be pleased to certifiy this matter as urgent and have it heard exparte in the first instance.
(b) THAT, this honourable court be pleased to issue preservatory orders against the 1st, 3rd, 4th, 5th, 6th 7th, and 8th defendants in terms of an order of temporary injunction by themselves, their agents, assignees or anybody acting on their behest from, entering, interfering with the plaintiffs quiet possession, evicting, changing the registration status of the subject parcels and or restraining the defendants from carrying on fresh survey of a road of access till this mater is heard and determined interparties
(c) THAT, this honourable court be pleased to issue presevatory orders against the 1st, 3rd, 4th, 5th, 6th, 7th, and 8th defendants/respondents in terms of an order of temporary injunction by themselves, their agents, assignees, or anybody acting on their behest from entering, interfering with the plaintiffs' quiet possession, evicting, changing the registration status of the subject parcels and or restraining the defendants from carrying on the survey of road of access till this petition is heard and determined.
(d) THAT, this honourable court be pleased to issue a penal warning to the respondents in case of disobedience in the following terms;-
“That if you, the respondents herein by yourselves, your agents, assigneees, servant or people acting at your behest do not obey this lawful court order, you will be cited for contempt of court an offence that is punishable by 6 months imprisonment or a fine or both”.
(e) THAT, costs of this application be borne by the respondents.
Prayers (a), (b) and (d) are spent.
The defendants were served but did not come to court on 4. 3.2014 for the hearing of this application interpartes. In the circumstances, the application is allowed.
Costs shall be in the cause.
Delivered in open court this 4th day of March, 2014 in the presence of:
Cc. Daniel
Ondari for petitioners/applicants
P. M. NJOROGE
JUDGE