[2007] KEHC 3525 (KLR)
The court found that the applicant has been in occupation of the disputed parcel of land since 1978 and continues to occupy it. Given the ongoing interference and threats of eviction by the defendant, there is a real risk that the applicant may suffer irreparable harm if the land is sold or possession is disturbed...
Source-derived case information.
- Citation
- [2007] KEHC 3525 (KLR)
- Parties
- Plaintiff: Mugo Ndemero; Defendant: Edward Muganda Ngare
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 66 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- interlocutory injunction granted pending hearing and determination of the suit
- Legal Topics
- Adverse Possession, Limitation of Actions, Declaration of Trust
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugo Ndemero
Plaintiff
Edward Muganda Ngare
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to restraining orders against the defendant regarding parcel Embu/Kithunthiri/1458 pending determination of the suit.
- 2 Whether the applicant has established a prima facie case for the grant of interlocutory injunction based on occupation since 1978.
Ratio Decidendi
The court found that the applicant has been in occupation of the disputed parcel of land since 1978 and continues to occupy it. Given the ongoing interference and threats of eviction by the defendant, there is a real risk that the applicant may suffer irreparable harm if the land is sold or possession is disturbed before the suit is heard and determined. The court held that it is necessary to preserve the status quo and ensure the dispute is heard on its merits. Accordingly, the court granted the restraining orders sought in prayer 2 of the application, pending the hearing and determination of the suit.
Court Disposition
interlocutory injunction granted pending hearing and determination of the suit
Orders
- Restraining orders granted in terms of application prayer 2 pending the hearing and determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Case 66 of 2007
MUGO NDEMERO…………………………………..………..PLAINTIFF
VERSUS
EDWARD MUGANDA NGARE…………………………..DEFENDANT
RULING
The suit is commenced by way of Originating Summons. Applicant seeks orders under Limitation of Actions Act and a declaration of trust in the alternative.
On 11/5/2007 he filed a Chamber Summons seeking restraining orders against the Defendant in regard to parcel number Embu/Kithunthiri/1458, on the grounds that the Applicant has been occupying the said parcel since 1978 and that now defendant is interfering with his use of the said land even threatening eviction and he may sell the land to 3rd parties. The application is supported by affidavit with annexures. The application is opposed by Defendant who has filed Replying Affidavit with annexures. It is clear that the plaintiff/Applicant has been in occupation of land since 1978, even today. There is therefore need for dispute to be heard by court. In the circumstances the orders sought are hereby granted in terms of application prayer 2 pending the hearing and determination of this suit.
It is so ordered. Costs in the cause.
Dated this 28th November, 2007.
J. N. KHAMINWA
JUDGE
28/11/2007
Khaminwa – Judge
Njue – Clerk
Mugo Ndemero present
Read in open court.
J. N. KHAMINWA
JUDGE