[2017] KEHC 2574 (KLR)
The court found that the applicants are in possession of the suit properties and have demonstrated a prima facie case for the grant of an injunction. The respondent failed to file any response or provide evidence of lawful allocation or entitlement to the suit land. In the absence of such evidence from the...
Source-derived case information.
- Citation
- [2017] KEHC 2574 (KLR)
- Parties
- Applicant: Margaret Kalondu Musau; Applicant: John Muoki Musau; Respondent: Johnson Musau Muindi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 30 of 2013
- Procedural Posture
- Injunction Application / Ruling on Amended Notice of Motion
- Outcome
- amended notice of motion allowed; injunction granted
- Judges
- OA Angote
- Legal Topics
- Injunctions, Possession Disputes, Allocation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Kalondu Musau
Applicant
John Muoki Musau
Applicant
Johnson Musau Muindi
Respondent
Procedural Posture
Injunction Application / Ruling on Amended Notice of Motion
Legal Issues
- 1 Whether the applicants are entitled to an injunction restraining the respondent from interfering with their possession of the suit properties pending determination of the suit.
- 2 Whether the respondent has any lawful claim or allocation over the suit properties.
Ratio Decidendi
The court found that the applicants are in possession of the suit properties and have demonstrated a prima facie case for the grant of an injunction. The respondent failed to file any response or provide evidence of lawful allocation or entitlement to the suit land. In the absence of such evidence from the respondent, and considering the applicants' possession and the structures erected on the land, the court held that the applicants should remain in possession pending the hearing and determination of the main suit. The amended Notice of Motion was therefore allowed as prayed.
Court Disposition
amended notice of motion allowed; injunction granted
Orders
- An order of injunction is issued restraining the respondent, his agents, servants, assignees and/or surrogates from trespassing onto, encroaching upon or in any way interfering with the applicants' quiet possession of Plots No. 37C, 37D, 38C, 38D, 39C, 39D, 40C and 40D within Mlolongo Area pending the hearing and...
- Costs of the application to be provided for.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 30 OF 2013
MARGARET KALONDU MUSAU .......................1ST APPLICANT
JOHN MUOKI MUSAU .......................................2ND APPLICANT
VERSUS
JOHNSON MUSAU MUINDI ..................................RESPONDENT
RULING
1. In the amended Notice of Motion dated 2nd June, 2016, the Plaintiffs are seeking for the following orders:
a. That this Honourable Court be pleased to issue an order of injunction restraining the Respondent, his agents, servants, assigness and/or surrogates from trespassing onto, encroaching upon or in any way howsoever, under any pretext or guise, interfering with the Applicants quiet possession of all those parcels of land known as Plots No. 37C, 37D, 38C, 38D, 39C, 39D, 40C and 40D within Mlolongo Area pending the hearing and final determination of this suit.
b. That the costs of this Application be provided for.
2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that she is the lawful allotee of plot numbers 39C, 39D, 40C and 40D within Mlolongo area (the suit land);that on 28th September, 2015, the Respondent informed the Plaintiffs that he would demolish their structures and that the Respondent then issued them with notices to vacate the suit premises.
3. The Defendant did not file a response to the Application.
4. The Plaintiffs’ advocate filed brief submissions which I have considered.
5. It is not in dispute that the Plaintiffs are in possession of the suit properties.
6. The Plaintiffs have exhibited photographs which shows the structures that they have put up on the land.
7. In the absence of any document showing that the suit property was lawfully allocated to the Respondent, I find and hold that he Plaintiffs should continue being in possession of the suit land pending the hearing of the suit.
8. It is for those reasons that I allow the amended Notice of Motion dated 2nd June, 2016 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.
O. A. ANGOTE
JUDGE