[2001] KEHC 441 (KLR)
The court found that the applicants failed to establish a prima facie case to warrant the grant of a temporary injunction. There was insufficient evidence before the court to demonstrate that the respondents were interfering with the disputed land parcels in a manner that justified interlocutory relief. The court...
Source-derived case information.
- Citation
- [2001] KEHC 441 (KLR)
- Parties
- Applicant: Mwithya Kithu; Applicant: Kaloki Itute; Applicant: Masika Kithu; Applicant: Michael Mukolya; Respondent: Land Dispute Tribunal Machakos
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 19 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Land Disputes, Prima Facie Case, Certiorari Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwithya Kithu
Applicant
Kaloki Itute
Applicant
Masika Kithu
Applicant
Michael Mukolya
Applicant
Land Dispute Tribunal Machakos
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant the grant of a temporary injunction against the respondents.
- 2 Whether there is sufficient evidence to justify restraining the respondents from interfering with the disputed land parcels pending determination of the certiorari application.
Ratio Decidendi
The court found that the applicants failed to establish a prima facie case to warrant the grant of a temporary injunction. There was insufficient evidence before the court to demonstrate that the respondents were interfering with the disputed land parcels in a manner that justified interlocutory relief. The court was not persuaded by the request to visit the land, as no substantive evidence was presented to support the allegations of interference. Consequently, the application for a temporary injunction was dismissed, and the parties were directed to proceed with the substantive application for certiorari, which had been pending for several years.
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs.
- Parties to fix dates for the hearing of the substantive application for certiorari.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISCELLANEOUS APPLICATION NO. 19 OF 1999
MWITHYA KITHU ::::::::::::::::::::::::::::::::::::::::::::::: 1 ST APPLICANT
KALOKI ITUTE :::::::::::::::::::::::::::::::::::::::::::::::::: 2 ND APPLICANT
MASIKA KITHU ::::::::::::::::::::::::::::::::::::::::::::::::: 3 RD APPLICANT
MICHAEL MUKOLYA ::::::::::::::::::::::::::::::::::::::::: 4 TH APPLICANT
VERSUS
LAND DISPUTE TRIBUNAL MACHAKOS :::::::::::::: RESPONDENT
Coram: J. W. Mwera J.
D. Mutinda Advocate for Applicant
Makau O. Advocate for Respondent
C.C. Muli
************************
R U L I N G
Under O.39 rr. 1, 2 Civil Procedure Rules the litigants Henry and Boniface Mulwa desire in their application dated 20. 11. 2000 this court to grant them an injunction against their adversaries – Muithya, Masika, Nzwili, Mukolya and Kaloki. That they should not interfere with certain land parcels Nos. MUTHETHENI/KYETHIVO/207,209 that were a subject in Machakos Land Disputes Tribunal Case No. 150/1996.
From the record, after that tribunal made a decision Muithya and his group filed an application for the orders of certiorari dated 16. 2.98 – still pending.
This court was made to understand that in the meantime the Muithya group is cutting trees and in a way apportioning the disputed land among themselves. To believe this, the court was asked to visit the land to ascertain for itself. That was Mr. D. Mutinda’s thrust of argument for temporary injunction otherwise his clients stood to suffer loss and prejudice.
Mr. O. Makau’s view was that his clients have always lived, cultivated and carried out normal activities over the land in issue. They had not procured any land control board consent, followed by other necessary processes to attempt to demarcate and apportion to themselves the land in issue. That save to ask the court to visit the land, no evidence was placed before it to urge it to issue the desired injunction.
Having heard both sides this court is not inclined to grant orders as prayed. It is not satisfied that a prima facie case has been made out. The application is dismissed and parties are advised to fix a date for the substantive notice of motion’s final disposal. It has been here for some three years and no doubt some friction among the litigants is bound to arise.
In sum the application is dismissed with costs. Parties to fix dates to hear the application for certiorari without any more other applications.
Orders accordingly.
Delivered on 28th February 2001.
J. W. MWERA
JUDGE