[2017] KEELC 1705 (KLR)
The Plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction because he did not provide sufficient evidence of ownership or entitlement to the unsurveyed suit land. The land in question is ancestral and its boundaries are unclear, making it difficult for the court to determine...
Source-derived case information.
- Citation
- [2017] KEELC 1705 (KLR)
- Parties
- Plaintiff: Murandi Kaburunya; Defendant: Gitonga Makindi; Defendant: Marigh’u Kamunyu; Defendant: Nkondo Kamunyu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 192 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Ancestral Land Disputes, Land Ownership, Trespass, Unsurveyed Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Murandi Kaburunya
Plaintiff
Gitonga Makindi
Defendant
Marigh’u Kamunyu
Defendant
Nkondo Kamunyu
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for the grant of an interlocutory injunction.
- 2 Whether the Plaintiff has demonstrated ownership or entitlement to the unsurveyed suit land.
- 3 Whether the dispute should be resolved by the court or through local elders as suggested by the Chief.
Ratio Decidendi
The Plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction because he did not provide sufficient evidence of ownership or entitlement to the unsurveyed suit land. The land in question is ancestral and its boundaries are unclear, making it difficult for the court to determine the extent of the property. The Chief and local elders had previously suggested resolving the dispute through customary mechanisms, but the Plaintiff objected without justification. In the absence of documentary evidence supporting the Plaintiff's claim and given the existence of competing claims of ancestral ownership by the Defendants, the court found no basis to grant the...
Court Disposition
application dismissed
Orders
- The Plaintiff's Application dated 14th November, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 192 OF 2016
MURANDI KABURUNYA........................................PLAINTIFF
VERSUS
GITONGA MAKINDI ........................................1ST DEFENDANT
MARIGH’U KAMUNYU ..................................2ND DEFENDANT
NKONDO KAMUNYU ....................................3RD DEFENDANT
RULING
1. In the Notice of Motion dated 14th November, 2016, the Plaintiff is seeking for these orders:
a. That an injunction barring and restraining the Respondents, their agents, servants or employees from trespassing into, entering, putting up building, undertaking any works or in any other way whatsoever and howsoever interfering with the Applicant’s unsurveyed land pending the hearing and determination of this suit.
b. That the costs of this Application be provided for by the Respondents.
2. The Application is predicated on the grounds that the Defendants have trespassed on the suit land; that the Defendants have been cutting down trees and that the injunctive order should issue.
3. In a short Affidavit, the Plaintiff deponed that he is the owner of the unsurveyed land measuring approximately 30 acres in Gaciongo Sub-Location, Tharaka Location, Mumoni District within Kitui County; that he inherited the suit land from his late father in the year 1989 and that he has been utilizing the land in question by grazing and cultivating it for over twenty (20) years.
4. It is the Plaintiff’s deposition that the Defendants trespassed on the suit land in November, 2016 and started falling down trees and fencing off the land.
5. In response, the 1st Defendant deponed that the suit land is ancestral land; that he was born and brought up on the suit land and that the land he has settled on does not boarder the Plaintiff’s land.
6. According to the 1st Defendant, when the area Chief attempted to resolve the dispute, the Plaintiff’s advocate did a letter warning the Chief to keep off the dispute; that he has had buildings on his land since the year 1985 and that the Applicant has been violent.
7. The 2nd Defendant deponed that indeed the suit land is their ancestral land which was acquired by his grandfather in 1943; that they rightfully own the disputed land and that the land has eight permanent buildings on it.
8. The Plaintiff filed brief submissions in which he stated that his land is being wasted by the Defendants.
9. It is not in dispute that the suit property has not been surveyed.
10. Indeed, from the description of the land, the court cannot determine the extent of the land in question.
11. Considering that the both the Plaintiff and the Defendants are claiming that the land is their ancestral land, it is the Chief and the elders of the area who can deliberate on the extent of each parties’ ancestral land.
12. The Defendants have annexed letters from the Chief of the area dated 29th August, 2016.
13. According to the said letter, the Chief informed the parties to choose elders who can resolve the dispute. However, the Plaintiff’s advocates objected to the arrangement.
14. In view of the unwarranted objection by the Plaintiff to have the elders deliberate on the dispute, and in the absence of any document showing that he is the one entitled to the suit land, I find that the Plaintiff has not established a prima facie case with chances of success.
15. I therefore dismiss the Plaintiff’s Application dated 14th November, 2016 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.
O.A. ANGOTE
JUDGE