[2017] KEELC 185 (KLR)
The court found that the plaintiff had established a prima facie case by demonstrating registered ownership and long-term occupation of the suit land. The defendants, having failed to respond to the application, did not challenge the plaintiff's assertions. The court accepted the plaintiff's evidence of invasion,...
Source-derived case information.
- Citation
- [2017] KEELC 185 (KLR)
- Parties
- Plaintiff: Joseph Mungathia Kibuthania; Defendant: Julius Gitonga; Defendant: Douglas Michubu; Defendant: Julius Mutia M’Ebuthania; Defendant: The District Land Adjudication and Settlement Officer Akirangondu Adjudication Section
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 277 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Legal Topics
- Injunctive Relief, Land Ownership, Adjudication Process, Fraudulent Land Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mungathia Kibuthania
Plaintiff
Julius Gitonga
Defendant
Douglas Michubu
Defendant
Julius Mutia M’Ebuthania
Defendant
The District Land Adjudication and Settlement Officer Akirangondu Adjudication Section
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from interfering with his possession and occupation of LR NO. IGEMBE/AKIRANG’ONDU ‘B’/1493 pending determination of the suit.
- 2 Whether the plaintiff has demonstrated a prima facie case with a probability of success to warrant the grant of injunctive relief.
- 3 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by demonstrating registered ownership and long-term occupation of the suit land. The defendants, having failed to respond to the application, did not challenge the plaintiff's assertions. The court accepted the plaintiff's evidence of invasion, destruction of crops, and fraudulent alteration of the registry map as uncontroverted. The risk of eviction and ongoing interference with the plaintiff's possession constituted irreparable harm. Consequently, the court granted the temporary injunction sought, but limited its duration to eight months, pending further proceedings.
Court Disposition
application allowed
Orders
- A temporary injunction is issued restraining the defendants, their agents, servants, or anyone acting at their behest from interfering with the plaintiff’s possession and occupation of LR NO. IGEMBE/AKIRANG’ONDU ‘B’/1493 for a period of 8 months.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 277 OF 2017
JOSEPH MUNGATHIA KIBUTHANIA...............PLAINTIFF
VERSUS
JULIUS GITONGA........................................1ST DEFENDANT
DOUGLAS MICHUBU..................................2ND DEFENDANT
JULIUS MUTIA M’EBUTHANIA...............3RD DEFENDANT
THE DISTRICT LAND ADJUDICATIONAND
SETTLEMENTOFFICER AKIRANGONDU
ADJUDICATION SECTION.........................4TH DEFENDANT
R U L I N G
1. The Notice of Motion dated 20th September, 2017 seeks the following orders:-
1) Spent.
2) That this Honourable Court be pleased to issue an order of temporary injunction restraining the defendants their agents, servants or anyone else working at their behest from the interfering with the Plaintiff’s possession and/or occupation of land parcel LR.NO. IGEMBE / AKIRANG’ONDU “B” /1493 pending the hearing and determination of this application.
3) That this Honourable Court be pleased to issue an order of temporary Injunction restraining the defendants their agents, servants or anyone else working at their behest from the interfering with plaintiff‘s user, possession and/or occupation of land parcel LR NO. IGEMBE/AKIRANG’ONDU’B’ /1493 pending the hearing and determination of this suit.
4) That costs for and incidental to this application be borne by the defendant.
2. The application is based on the grounds:-
i. That the Plaintiff is the registered owner of the land parcel L.R NO. IGEMBE/AKIRANG’ONDU ‘B’/ 1493 which has occupied all his life for a period of over 50 years and have developed the same extensively.
ii. That on 25/08/17 the 1st, 2nd and the 3rd defendants in company of hirelings invaded the plaintiffs land parcel LR.NO. IGEMBE/AKIRANG’ONDU ‘B’/1493 by encroaching on the same, destroyed the plaintiff seasonal food crops and also erected a fence within the plaintiff’s land.
iii. That upon the perusal by the plaintiff of the IGEMBE/AKIRANG’ONDU Adjudication registry index map sheet No. 19/5 the plaintiff realized that the 1st, 2nd, 3rd and 4th defendants conspired and fraudulently altered the registry index map by removing the plaintiff, and parcel LR No. IGEMBE/AKIRANG’ ONDU / 1493 on the map and replaced the same with the 1st, 2nd and 3rd defendant lands and taking the plaintiff’s land to unknown destination.
iv. That the 1st, 2nd and 3rd defendants have now vowed to evict the plaintiff from his occupation and have also commenced to harvest the plaintiff Miraa trees to his financial detriment.
v. That unless the orders sought are issued the plaintiff occupation and user of his land will be curtailed occasioning him unrepairable damage.
3. Applicant has sworn an affidavit in support of his application where he avers that he has been in occupation of the suit land for over 50 years. He has also availed a copy of a title deed to show that he is the registered owner of the suit land.
Defendant did not file any response despite the fact that service was effected.
I therefore find that the application is merited. The application is allowed but the Injunctive Orders are to remain in force for a period of 8 months. There are no orders as to costs.
DELIVERED, SIGNED AND DATED THIS 24TH OCTOBER, 2017 IN THE PRESENCE OF:-
C:AJanet
Kithinji for Plaintiff -present
HON. L.N. MBUGUA
ELC JUDGE