[2018] KEELC 2015 (KLR)
The court found that the plaintiffs had proved ownership of the suit land by producing the title deed. The defendant, despite being duly served, failed to appear or file a defence. There was no evidence before the court to justify the restriction placed by the defendant on the plaintiffs' land. The court held that...
Source-derived case information.
- Citation
- [2018] KEELC 2015 (KLR)
- Parties
- Plaintiff: Muthike Mwai; Plaintiff: Moses Muriuki Mwai; Plaintiff: Kiacuru Mwangi Mathangu; Plaintiff: James Ngabu Mwai; Plaintiff: Stephen Mathangu Mwai; Defendant: The County Government of Kirinyaga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 154 of 2016
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- Plaintiffs' suit allowed in part; restriction to be removed and permanent injunction granted; claim for damages dismissed.
- Judges
- SN Mukunya
- Legal Topics
- Land Restrictions, Removal of Restriction, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthike Mwai
Plaintiff
Moses Muriuki Mwai
Plaintiff
Kiacuru Mwangi Mathangu
Plaintiff
James Ngabu Mwai
Plaintiff
Stephen Mathangu Mwai
Plaintiff
The County Government of Kirinyaga
Defendant
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the plaintiffs are the registered owners of land parcel MWERUA/KAGIO/2647.
- 2 Whether the restriction placed by the defendant on the plaintiffs' land was lawful.
- 3 Whether the plaintiffs are entitled to removal of the restriction and a permanent injunction against the defendant.
Ratio Decidendi
The court found that the plaintiffs had proved ownership of the suit land by producing the title deed. The defendant, despite being duly served, failed to appear or file a defence. There was no evidence before the court to justify the restriction placed by the defendant on the plaintiffs' land. The court held that the restriction was unlawful and that the plaintiffs were entitled to its removal. The court also found that the plaintiffs were entitled to a permanent injunction restraining the defendant from interfering with their use and enjoyment of the land. However, the claim for damages was dismissed as it was not proved.
Court Disposition
Plaintiffs' suit allowed in part; restriction to be removed and permanent injunction granted; claim for damages dismissed.
Orders
- The restriction placed on land parcel MWERUA/KAGIO/2647 is hereby removed.
- A permanent injunction is issued restraining the defendant, its agents, and anyone claiming through it from entering, removing, developing, or in any way interfering with the plaintiffs' peaceful use of the said land.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
ELC CASE NO. 154 OF 2016
MUTHIKE MWAI............................................1ST PLAINTIFF/APPLICANT
MOSES MURIUKI MWAI.............................2ND PLAINTIFF/APPLICANT
KIACURU MWANGI MATHANGU.............3RD PLAINTIFF/APPLICANT
JAMES NGABU MWAI..................................4TH PLAINTIFF/APPLICANT
STEPHEN MATHANGU MWAI..................5TH PLAINTIFF/APPLICANT
VERSUS
THE COUNTY GOVERNMENT OF KIRINAYGA................DEFENDANT
JUDGMENT
[1] The plaintiffs filed this suit against the defendant and claimed that they have been at all material times been the registered owners of land parcel MWERUA/KAGIO/2647 measuring 6. 5 acres or thereabout situated near Kagio Market in Kirinyaga County. Further that the defendant without any colour of right have placed restriction on the said land on 20th March 2013. That the said restriction has restricted the user of the land and that the plaintiffs continue to suffer loss and damage. The plaintiffs therefore pray for an order of the removal of the said restriction and a permanent injunction to issue against the defendant, its agents and anyone claiming through it from entering, removing, developing or in any way interfering with the plaintiffs’ peaceful right of use of the said land.
They also seek for general and punitive damages.
[2] The defendant was duly served on 3rd November 2016 at 3 p.m. at their offices in Kutus and there is a return of service by Joseph Nduku Njuki an advocate of the High Court.
[3] The defendant did not file any appearance or defence and the suit was formerly proved by the plaintiffs in Court. The notice of formal proof dated 26th September 2017 was served on the office of the County Secretary on 28th September 2017 and a duly stamped copy is in the Court file. A return of service dated 2nd October 2017 is filed in Court.
[4] The parties produced the signed copy of the title of MWERUA/KAGIO/2647 in the names Muthike Mwai and others in Court on 2nd May 2018.
[5] There being no appearance and or defence in this case, this suit is not opposed. The prayers in the plaint are allowed as prayed other than the prayers for damages which were not proved before me.
It is so ordered.
S.N. MUKUNYA
JUDGE
6TH JULY, 2018
6/7/2018
Before
S.N. Mukunya – Judge
Okatch – C/A
Plaintiffs
Defendant
Mr. Nduku for the Plaintiffs
Defendant did not appear
Judgment read in open Court at Kerugoya before counsel for the Plaintiffs.
S.N. MUKUNYA
JUDGE
6TH JULY, 2018