[2004] KEHC 847 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI CIVIL CASE NO. 76 OF 2004

MICHAEL MBAE NYANGE (Suing as an

Attorney of Nyange Giita P/A NO. 316)……………….PLAINTIFF/APPLICANT

Versus

1. MARGARET WAMBUI MACHARIA…..1ST DEFENDANT/RESPONDENT

2. FRANCIS KARIUKI GUAMBA…...……2ND DEFENDANT/RESPONDENT

3. GIBSON KABUI WACHIRA.……..……3RD DEFENDANT/RESPONDENT

4. PAUL NGATIA GACHARA.………..…..4TH DEFENDANT/RESPONDENT

5. DICKSON NDUMIA WAMBUGU…..…5TH DEFENDANT/RESPONDENT

6. DIRECTOR OF SURVEY………………..6TH DEFENDANT/RESPONDENT

7. DISTRICT SURVEYOR………………….7TH DEFENDANT/RESPONDENT

8. DISTRICT LAND REGISTRAR….….…8TH DEFENDANT/RESPONDENT

9. THE HON. ATTORNEY GENERAL..…9TH DEFENDANT/RESPONDENT

RULING

The Applicant in his Chamber Summons dated 10th August 2004 prays for orders of injunction against all the Respondents, with the exception of the 9th Respondent, restraining them from entering into, trespassing on, passing through, clearing bush, cutting down coffee and other growing trees or plants, purporting to create a road of access across the Applicant’s parcel of land No. THEGENGE/KARANGIA/220 or in any way purporting to amend the Registry Index Map with a view to creating a road of access through the land or causing any acts of waste in the said parcel of land until the suit in which this Chamber Summons is filed is heard and determined. I have lumped prayers 2 and 3 of the Chamber Summons – in that summary. The Chamber Summons is filed in a pending suit filed by the Applicant against the nine Respondents mainly praying for similar orders of injunction but on a permanent basis. In addition, the Applicant’s plaint seeks a declaration.

I am trying to avoid details as I do not think it necessary to go into those details at this stage. The position briefly being that parcels of land in THEGENGE/KARANGIA adjudication section were registered under the Registered Land Act (Cap. 300 Laws of Kenya) on 3rd March 1958. That is the date of the first registration as referred to in provisions like Section 143(1) of the Registered Land Act.

What is referred to as a Registry Index Map forms part of the record so registered and in this particular case the relevant Registry Index Map (RIM) is Registry Map Sheet No. 5 which clearly shows no road of access passing along the boundary between parcel of land number 220 and parcel of land number 221 in the aforementioned adjudication section. Further, no such a road is shown by that map as crossing through parcel number 220. The Applicant/Plaintiff is the absolute registered proprietor of the said parcel number 220.

But recent evidence is to the effect that there has been a narrow footpath existing either along the boundary between parcel number 220 and parcel number 221 or across parcel number 220. There is a dispute as to how long that footpath has existed.But to drive a hot nail into a bleeding wound, attempt is being made by users of that path assisted by Government officials to convert that footpath into an official and legally accepted 10 feet wide road of access. The Applicant is against that attempt, claiming it is being done without his consent and without observing lawful procedure.As a result, correspondence has been exchanged, culminating into the filing of this suit by the Applicant/Plaintiff.

Each side is relying on different provisions of the law; provisions which should be examined and interpreted during the hearing and determination of the main suit. The main issue in the matter is whether the correctly applicable law is being correctly applied. That is not an issue that can properly be resolved in this Chamber Summons and as I remember saying in a similar application in a similar case at this court station where this type of cases seem to have started coming up, this is the kind of case the parties should be keen in pushing to a quick hearing and determination of the main suit instead of engaging in interlocutory applications which prolong proceedings and delay justice. Evidence has been filed that members of the public have been using that footpath for a long time. Restraining them to-day from using that footpath through a mere temporary injunction with a possibility that the Applicant/Plaintiff is going to sleep and forget all about prosecution of the main suit only waking up occasionally when he feels the need to file contempt proceedings, is not going to serve ends of justice in this matter.Yes Respondents may have widened the footpath into a road, which can now be used by motor vehicles. In doing so, Respondents may have interfered with or destroyed some crops or trees or fence or other property but for ends of justice to be better served, let us all speed, without distraction, towards the hearing and final determination of the main suit. I note that the Applicant’s plaint does not include a prayer for damages, suggesting that the destruction he claims to have been caused may not have been there. Otherwise he can amend the plaint to include a prayer for damages if indeed his property was destroyed unlawfully.

I think I have said enough to dispose off this Chamber Summons dated 10th August 2004. Accordingly, the said Chamber Summons is hereby dismissed; and bearing in mind the circumstances of this case, each party to bear its own costs of this Chamber Summons.

Dated this 18th day of November 2004.

J. M. KHAMONI

JUDGE