[2017] KEELC 1635 (KLR)
The court found that the orders sought in the application for a temporary injunction were not entirely consistent with the main prayers in the plaint, which included demolition and eviction of the defendant, indicating that the defendant was already in occupation. The court, therefore, declined to grant the specific...
Source-derived case information.
- Citation
- [2017] KEELC 1635 (KLR)
- Parties
- Plaintiff: Joshua M’Mwirebua Kireru; Defendant: Kathiari Mungania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 184 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory orders granted in part; status quo preserved
- Legal Topics
- Injunctive Relief, Adverse Possession, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua M’Mwirebua Kireru
Plaintiff
Kathiari Mungania
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit plot pending determination of the suit.
- 2 Whether the orders sought are consistent with the pleadings in the plaint.
Ratio Decidendi
The court found that the orders sought in the application for a temporary injunction were not entirely consistent with the main prayers in the plaint, which included demolition and eviction of the defendant, indicating that the defendant was already in occupation. The court, therefore, declined to grant the specific injunctive relief sought by the plaintiff but issued orders preserving the status quo by restraining both parties from carrying out further developments or demolitions on the suit land pending determination of the suit. The court emphasized the need for interlocutory relief to align with the substantive claims and to prevent prejudice to either party before the full hearing.
Court Disposition
interlocutory orders granted in part; status quo preserved
Orders
- No further developments are to be carried out on the suit land.
- No demolitions are to be carried out on the suit land.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 184 OF 2017
JOSHUA M’MWIREBUA KIRERU ………………...PLAINTIFF
VERSUS
KATHIARI MUNGANIA ………….………………..DEFENDANT
R U L I N G
1. The Notice of Motion dated 15th day of June, 2017 seeks the following orders:-
1. Spent.
2. That this Court be pleased to issue an order of temporary injunction restraining the defendant, his agents, servants, employees, assigns. Legal representative or anybody claiming under his name be restrained from taking occupation, selling, leasing out, pouring building materials, developing or any in any other way interfering with suit plot within Mwangaza C3 belonging to the Plaintiff pending hearing and determination of application and the suit.
3. In the alternative status quo prevailing at time of filing case be maintained in that Plaintiff do remain in exclusive occupation of suit pending hearing and determination of application and the suit.
4. Costs of application.
2. The application is based on the grounds:-
1. That the applicant has been in exclusive and in uninterrupted occupation of suit plot for over 30 years.
2. The defendant has illegally and without permission of the plaintiff started permanent construction on the land in attempt to disposes the plaintiff of the suit plot.
3. That the plaintiff shall suffer irreparable loss if the respondent is not restrained.
4. The respondent is trying to process illegal registration of the plot.
3. The Applicant has also filed a Supporting Affidavit where he has deponed as follows:-
1. That he was the lawful owner of 3 plots measuring 50 by 100 feet within Mwangaza C3 within Isiolo Municipality within Isiolo County.
2. That the plots are unregistered although they have been waiting for registration only for County Government to suspend legitimate registration sometimes in 2013.
3. That he has been in continuous and un interrupted occupation of the plot for over 30 years.
4. That he has developed the plot whereof he has fenced with live fence and built semi-permanent houses thereon.
5. That the Applicant heard that the defendant had gone to Isiolo County Offices trying to seek secretly a registration of the said plot in his favour without applicant’s knowledge or consent.
6. That registration at the said offices had been stopped and applicant learnt that the respondent was trying a back door attempt to acquire the plot.
7. That he had poured building materials thereon, poles, sand, and gravel building stones which the defendant herein is using to construct structures on Applicant’s land.
8. That his son’s Benard Mururu & Stephen Mwenda approached the defendant over the issue whereby he assaulted them causing severe injuries to the legs and head. The matter was reported at the Isiolo Police Station in OB No. 68/9/06/17.
9. That the action of respondent is totally to disposes him off the plot and he stands to suffer irreparable loss.
10. That the respondent is intending to put up permanent buildings on the plot and he should be restrained pending hearing and determination of the case.
4. The application was served but there is no response.
5. I have perused the application vis a vis the prayers in the Plaint. In the Application, the prayers are to have defendant restrained from occupying the land amongst other prayers.
However one of the main prayers in the plaint is an order of demolition and eviction of defendant and his agents from the suit land. It follows that defendant is on the land.
The orders sought for herein are therefore not in tandem with the pleadings of the applicant.
The orders which the Court grants at this stage are as follows:-
1. No further developments are to be carried out on the suit land.
2. No demolitions are to be carried out on the suit land.
3. Costs in the cause.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT MERU THIS 21ST SEPTEMBER, 2017 IN THE PRESENCE OF: -
CA: Janet
In absence of all parties
HON. L.N. MBUGUA
ELC JUDGE