[2013] KEELC 20 (KLR)
The court found that since the defendant planted the maize crop before the suit was filed and the plaintiff did not oppose the application or show interest in the crop, denying access would result in waste. The earlier injunction restraining the defendant from the land was not intended to cause unnecessary loss or...
Source-derived case information.
- Citation
- [2013] KEELC 20 (KLR)
- Parties
- Plaintiff: Ngamate Wandongu; Defendant: Esther Njoki Kibunja
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 192 of 2013
- Procedural Posture
- Environment and Land Case / Interlocutory Application Ruling
- Outcome
- Application allowed. Defendant granted temporary access to harvest maize crop.
- Legal Topics
- Interlocutory Injunctions, Access to Land, Harvesting Rights, Waste Prevention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngamate Wandongu
Plaintiff
Esther Njoki Kibunja
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendant should be allowed temporary access to the suit land to harvest a maize crop planted before the suit was filed.
- 2 Whether granting access would contravene the earlier injunction restraining the defendant from the land.
Ratio Decidendi
The court found that since the defendant planted the maize crop before the suit was filed and the plaintiff did not oppose the application or show interest in the crop, denying access would result in waste. The earlier injunction restraining the defendant from the land was not intended to cause unnecessary loss or hardship, especially where the plaintiff had no claim over the crop. Therefore, the court exercised its discretion to allow the defendant temporary access solely for the purpose of harvesting the maize crop, with a clear deadline and a reminder that no further interference with the land was permitted pending the suit's determination.
Court Disposition
Application allowed. Defendant granted temporary access to harvest maize crop.
Orders
- The defendant is permitted to access the suit land solely for purposes of harvesting the maize crop she planted.
- The defendant must harvest the crop on or before 4th December 2013.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 192 OF 2013
NGAMATE WANDONGU.................................................................PLAINTIFF
VS
ESTHER NJOKI KIBUNJA.............................................................DEFENDANT
RULING
This is an application by the defendant seeking orders that she be allowed access to the land parcel Kapsaret/Kapsaret Block 1 (Yamumbi)/94 so as to allow her to harvest a maize crop which is on the said land.
This suit was instituted by way of plaint filed on 10 April 2013. In the plaint, the plaintiff sought orders to have the defendant permanently restrained from the suit land. Alongside the plaint, the plaintiff filed an application for injunction. I heard the application for injunction and through a ruling delivered on 8th May 2013, I allowed the application for injunction and ordered the defendant to stay away from the suit land pending hearing and determination of the main suit.
In this application, the plaintiff has stated that she planted the maize crop on the land believing that the land was her own and that she planted the crop before this suit was filed. She has stated that the maize crop was meant for her subsistence and is going to waste.
The defendant has not filed anything to oppose the application. Neither did his counsel appear in court at the inter-partes hearing of the application.
I would probably have had a problem with the prayers sought herein if the plaintiff had protested owing to the fact that I had already earlier restrained the defendant from the suit land. But it seems as if the plaintiff has no problem with the orders herein being issued. The plaintiff does not seem interested in the maize crop on the suit land and if I do not allow the application, it may very well be that the crop will go to waste. In the circumstances, I allow the application and permit the defendant to access the suit land solely for purposes of harvesting the maize crop that she planted. She must harvest the crop on or before the 4th day of December 2013. Upon harvesting the crop, the defendant ought not to interfere any further with the suit land pending hearing and determination of this suit as ordered on 8th May 2013.
I make no orders as to costs.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF NOVEMBER 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Miss J.C. Tarus h/b for Miss Mufutu for dependent/applicant
N/A for M/s J.K. & Co for Plaintiff/Respondent