[2010] KEHC 2664 (KLR)
The court found that the plaintiff failed to prove proprietary rights over the road reserve and did not provide sufficient evidence of encroachment onto her land by the defendants. The plaintiff did not specify the extent of the alleged encroachment or provide supporting documentation, such as a report, to...
Source-derived case information.
- Citation
- [2010] KEHC 2664 (KLR)
- Parties
- Plaintiff: Margret Kanini Kanga; Defendant: Margret Gathoni; Defendant: Jennifer Ciakirimo Kathuraku; Defendant: Zachary Wilfred Micheni; Defendant: Anita Maitha; Defendant: Wanja Njoka; Defendant: Zachary Nyamu Baini; Defendant: Jennifer Njoka
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 142 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the defendants
- Legal Topics
- Injunctions, Road Reserve Encroachment, Proprietary Rights, Prima Facie Case, Balance of Probabilities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margret Kanini Kanga
Plaintiff
Margret Gathoni
Defendant
Jennifer Ciakirimo Kathuraku
Defendant
Zachary Wilfred Micheni
Defendant
Anita Maitha
Defendant
Wanja Njoka
Defendant
Zachary Nyamu Baini
Defendant
Jennifer Njoka
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from using the road reserve fronting her property.
- 2 Whether the defendants have unlawfully encroached on the plaintiff's land.
- 3 Whether the plaintiff has established a prima facie case for the grant of an injunction.
Ratio Decidendi
The court found that the plaintiff failed to prove proprietary rights over the road reserve and did not provide sufficient evidence of encroachment onto her land by the defendants. The plaintiff did not specify the extent of the alleged encroachment or provide supporting documentation, such as a report, to substantiate her claims. The defendants' long-standing cultivation of the road reserve with official permission was not contradicted. Applying the principles in Giella v. Cassman Brown Ltd, the court held that the plaintiff had not established a prima facie case or demonstrated that damages would be inadequate. Consequently, the threshold for granting an interlocutory injunction was not...
Court Disposition
application dismissed with costs to the defendants
Orders
- The Chamber Summons dated 26th October 2009 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU Civil Case 142 of 2009
MARGRET KANINI KANGA …………………… PLAINTIFF
VERSUS
MARGRETGATHONI ………………………….. 1ST DEFENDANT
JENNIFER CIAKIRIMO KATHURAKU ……… 2ND DEFENDANT
ZACHARY WILFRED MICHENI ………………. 3RD DEFENDANT
ANITA MAITHA …………………………………. 4TH DEFENDANT
WANJA NJOKA …………………………………. 5TH DEFENDANT
ZACHARY NYAMU BAINI ……………………… 6TH DEFENDANT
JENNIFER NJOKA ……………………………… 7TH DEFENDANT
RULING
The plaintiff by her plaint pleaded that the defendants had unlawfully cultivated on a road reserve that is on Thuci Nkubu road, and thereby had encroached on her property no. Magumoni/Thuita/423. By her plaint, she seeks permanent injunction to stop the defendants using the road reserve fronting her said property.She filed an interlocutory application by way of Chamber Summons.The Chamber Summons is dated 26th September 2009 and is brought under Order XXXIX Rules 1 (a), Rule 2 and Rule 9 of the Civil Procedure Rules.By that application, the plaintiff seeks interlocutory injunction pending the final determination of the suit.In the affidavit in support of the interlocutory application, the plaintiff swore an affidavit where she repeated her pleadings in the plaint.She stated that the defendants were cultivating on the road reserve and in so doing, had encroached her land.The defendants opposed the plaintiff’s application by a replying affidavit sworn on 11th November 2009. In that affidavit, the defendants stated that they had cultivated on that road reserve for over 20 years with the express permission of the Engineer of Road Meru South District.They denied that they had encroached the plaintiff’s land or that they had impeded her entry into her land.The plaintiff in seeking to injunct the defendants needed to prove that she had proprietary rights over the road reserve.She did not prove it.An injunction cannot be granted in respect of the road reserve.The plaintiff however claimed that the defendants had encroached her land.She was not specific on how much land the defendants had encroached.The very core of an application for injunction is that the plaintiff must prove that she has a prima facie case and she must prove that damages could not be able to compensate what she would suffer.See the case Giella Vs. Cassman Brown Ltd [1973] E.A. 358. The plaintiff in my view, has failed to meet the threshold of granting an injunction.She has failed to prove on a balance of probability that her land has been encroached by the defendants or that her entry to her land has been impeded by the defendants.She did not contradict the assertion by the defendants that they had cultivated the road reserve for over 20 years.If indeed they have, it is then not clear how suddenly such cultivation can become the subject of an injunction application.The plaintiff to assist the court ought to have provided a report showing the encroachment to her land she alleges.This would have assisted the court.I find that there is no merit in the plaintiff’s application and accordingly the Chamber Summons dated 26th October 2009 is dismissed with costs to the defendants.
Dated and delivered at Meru this 21st day of May 2010.
MARY KASANGO
JUDGE