[2020] KEELC 305 (KLR)
The court declined to grant the ex parte eviction and demolition orders sought by the applicant, noting that similar relief had previously been refused by Lady Justice Mbugua on the basis that such orders would amount to granting final relief before the hearing and determination of the main suit. The court...
Source-derived case information.
- Citation
- [2020] KEELC 305 (KLR)
- Parties
- Plaintiff: Margaret Mukonatho; Defendant: The Attorney General; Defendant: DLASO; Defendant: Land Adjudication Officer; Defendant: Chief Giithu Location; Defendant: Nahashon Karuti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 37 (Os) of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Eviction and Injunction Orders
- Outcome
- Application for ex parte eviction and demolition orders declined; matter to be heard inter partes.
- Legal Topics
- Eviction Orders, Injunctive Relief, Adjudication Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Mukonatho
Plaintiff
The Attorney General
Defendant
DLASO
Defendant
Land Adjudication Officer
Defendant
Chief Giithu Location
Defendant
Nahashon Karuti
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Eviction and Injunction Orders
Legal Issues
- 1 Whether the applicant is entitled to ex parte eviction orders against the respondents from land parcel No. 2411 Githuu Adjudication Section.
- 2 Whether the court should grant an order compelling demolition of ongoing construction on the disputed land.
- 3 Whether the court should issue orders for police enforcement of eviction prior to hearing the main suit.
Ratio Decidendi
The court declined to grant the ex parte eviction and demolition orders sought by the applicant, noting that similar relief had previously been refused by Lady Justice Mbugua on the basis that such orders would amount to granting final relief before the hearing and determination of the main suit. The court emphasized the importance of inter partes hearing and directed that the application be served on the respondents and heard by the judge previously seized of the matter. The court thus prioritized procedural fairness and the avoidance of prejudging the substantive dispute before all parties had been heard.
Court Disposition
Application for ex parte eviction and demolition orders declined; matter to be heard inter partes.
Orders
- The applicant shall serve this application upon the respondents within 10 days.
- The application will be heard inter partes by Hon. Lady Justice Mbugua, ELC Judge at Meru, on 21st January, 2021.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
MERU ELC CASE NO. 37 (OS) OF 2019
MARGARET MUKONATHO.............................................................................PLAINTIFF
VERSUS
THE ATTORNEY GENERAL...................................1ST DEFENDANT/RESPONDENT
DLASO .........................................................................2ND DEFENDANT/RESPONDENT
LAND ADJUDICATION OFFICER..........................3RD DEFENDANT/RESPONDENT
CHIEF GIITHU LOCATION......................................4TH DEFENDANT/RESPONDENT
NAHASHON KARUTI................................................5TH DEFENDANT/RESPONDENT
RULING
1. This application was heard exparte in chambers in the absence of the applicant due to Covid-19 concerns.
2. The application seeks the following orders:
1. This Ho. Court be pleased to issue an order of evicting the respondent from the applicant’s land parcel No. 2411 Githuu Adjudication.
2. This Hon. Court further do issue an order compelling the respondent/defendant to demolish a building which he is continuing with construction and leave the applicant’s land as it was before.
3. The Hon. Court to issue an order compelling O.C.S Mikinduri Police Station to implement the Hon. court order of eviction.
3. The application has the following grounds:
a) The respondent/defendant is continuing with construction of his house violently in the applicant/plaintiff’s land despite the matter is pending in court.
b) The applicant/plaintiff is continuing to suffer irreparable loss and damages.
4. The application is supported by the plaintiff/applicant’s undated affidavit filed on 11th December, 2020. The affidavit states as follows:
1, Margaret Mukonathu of P.O. Box 23-60200 Meru in the Republic of Kenya make oath and state as follows:-
1. That I am the applicant/plaintiff herein hence competent to make and swear this affidavit and well versed on the facts of the following:-
2. That there is a sabotage of justice to help continuation of developments in suit land parcel No. 2411 Githu Adjudication Section for non-eviction court eviction (sic) order by pretences of determination of main suit.
3. That further there is an obstruction of justice to help development on the suit land parcel No. 2411 Githu Adjudication Section by delaying tactics to deliver justice.
4. That the action taken by the 4th respondent/defendant for continuing with development of building constructions on the suit land is motivated by malice and is to proof sabotage of justice by delaying tactics.
5. That there is a failure of justice and gross misjustice for non-eviction court order and court order restraining the 4th respondent/defendant from making developments and trespassing in the suit land.
6. That according to the action taken by 4th respondent/defendant to continue trespassing and making developments in myland is a true evidence of sabotage of justice to deliver justice.
7. That I make and swear this affidavit the contents being true to the best of my knowledge, information and belief praying this Hon. court to issue an order of eviction and an order restraining the 4th respondent/defendant from trespassing in L.R. No. 2411 Githu Adjudication Section being my land.
5. I do note that in her ruling delivered on 21st October, 2020, the Hon. Lady Justice Mbugua, ELC Judge at Meru, declined to grant orders to evict the defendant as she feared that such orders would amount to giving final orders before the suit is heard and determined. I do not wish to speculate if or if not prayer 2 falls in a similar category. This is because I will direct that this application be heard by the Hon. Lady Justice Lucy Mbugua, who has handled this matter before and who is still in station at Meru.
6. I issue the following orders:
a) The applicant should serve this application upon the respondents within 10 days of today.
b) The application will be heard interpartes by the Hon. Lady Justice Mbugua, ELC Judge at Meru, on 21st January, 2021.
Delivered at Chuka this 15th day of December, 2020 in the presence of:
CA: Ndegwa
Applicant to obtain a copy of the ruling at Meru Law Courts.
P. M. NJOROGE,
JUDGE.