[2015] KEHC 5187 (KLR)
The court found that the second defendant, as the registered owner of the suit land, had demonstrated sufficient grounds for varying the interim orders. The perishable nature of the materials and crops, the risk of wastage and vandalism, and the potential exposure to litigation from suppliers justified granting...
Source-derived case information.
- Citation
- [2015] KEHC 5187 (KLR)
- Parties
- Applicant: Joyce Nyakio; Applicant: Keith Kamau N'Thambiri; Applicant: Victoria Helen Wambiro; Respondent: Ephraim Ndwiga N'Thambiri; Respondent: Jim Njamu Njiru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 271 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Vary Interim Orders
- Outcome
- application allowed; interim orders varied
- Legal Topics
- Interlocutory Orders, Access to Land, Farming Rights, Variation of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Nyakio
Applicant
Keith Kamau N'Thambiri
Applicant
Victoria Helen Wambiro
Applicant
Ephraim Ndwiga N'Thambiri
Respondent
Jim Njamu Njiru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Vary Interim Orders
Legal Issues
- 1 Whether the interim orders granted on 24th March 2015 should be varied to allow the second defendant access to the suit land for farming and related activities.
- 2 Whether justice and fairness require the second defendant to be permitted to utilize perishable materials and prevent wastage or vandalism of crops and goods on the land.
Ratio Decidendi
The court found that the second defendant, as the registered owner of the suit land, had demonstrated sufficient grounds for varying the interim orders. The perishable nature of the materials and crops, the risk of wastage and vandalism, and the potential exposure to litigation from suppliers justified granting access for limited farming activities. The court held that justice and fairness required the variation of the previous order to allow the second defendant to weed, cultivate, and fence the land, pending the final determination of the dispute.
Court Disposition
application allowed; interim orders varied
Orders
- The second defendant is granted access to the suit land for purposes of weeding and cultivating maize and beans.
- The second defendant is permitted to fence the suit land to prevent wastage and vandalism.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
E.L.C. 271 OF 2015
FORMERLY KERUGOYA J.R. 16 OF 2014
JOYCE NYAKIO..............................................................1ST PLAINTIFF/APPLICANT
KEITH KAMAU N'THAMBIRI........................................ 2ND PLAINTIFF/APPLICANT
VICTORIA HELEN WAMBIRO....................................... 3RD PLAINTIFF/APPLICANT
VERSUS
EPHRAIM NDWIGA N'THAMBIRI............................1ST DEFENDANT/RESPONDENT
JIM NJAMU NJIRU...................................................2nd DEFENDANT/RESPONDENT
RULING
The second defendant/applicant through his counsel filed a notice of motion dated 30th March, 2015 under certificate of urgency. The hearing of this application proceeded ex-parte after I was satisfied that the three plaintiffs/respondents were served with the hearing notice by the defendants.
He requests the court to vary the orders granted on 24th March 2015. In his affidavit, he has stated that the order should be varied to enable him have access to the suit land.
On that suit land, he has placed fencing poles, building material such as sand and ballast and three hundred stems of fencing plants. According to him, this is necessary to enable him plant maize and beans as this is the rainy season. Finally, he had bought manure for usage on the suit land.
He has pointed out that some of the materials are perishable in nature. He says that he is the registered owner of the suit land. He states that justice and fairness dictate that he be allowed to weed and continue farming activities until the end of the season. He has also stated that the order of 24th March, 2015 has unfairly exposed him to the risk of litigation from his suppliers and transporters who delivered the materials.
More importantly, he urges the court to grant the order to avoid the crops and the goods on the farm from being vandalized and being wasted.
In the light of the foregoing matters, the order of this court dated 24th March, 2015 is hereby varied. As a result, I make the varied order in the following terms:
The second defendant will have access to the suit land for purposes of weeding and cultivating the suit land in respect of the maize and beans.
He is also allowed to fence the suit land so as to avoid wastage and vandalism.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this22nd ........day of …........APRIL....2015.
In the presence of Mr E. Njiru for the defendants and in the absence of the plaintiffs and their counsel
Court clerk Mr Muriithi
J.M. BWONWONGA
JUDGE