[2017] KEELC 2273 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case for the grant of a temporary injunction and inhibition. The plaintiffs had been in occupation of the disputed 5 acres since 1980, had financed the defendant's representation in clan land disputes, and had relied on the defendant's promise to...
Source-derived case information.
- Citation
- [2017] KEELC 2273 (KLR)
- Parties
- Plaintiff: Peter Mugo; Plaintiff: Catherine Igoki Mugo; Defendant: Stephen Njagi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- interlocutory injunction and inhibition granted; costs in the cause
- Judges
- FM Njoroge
- Legal Topics
- Injunctions, Adjudication Disputes, Clan Land Rights, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mugo
Plaintiff
Catherine Igoki Mugo
Plaintiff
Stephen Njagi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of a temporary injunction against the defendant pending hearing and determination of the suit.
- 2 Whether an order of inhibition should issue to preserve the suit property pending determination of the suit.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case for the grant of a temporary injunction and inhibition. The plaintiffs had been in occupation of the disputed 5 acres since 1980, had financed the defendant's representation in clan land disputes, and had relied on the defendant's promise to transfer the land. The defendant's threat to sell the land posed a risk of irreparable harm to the plaintiffs, who depended on the land for their livelihood. The court, applying the principles in Giella v Cassman Brown, determined that the balance of convenience favoured preserving the status quo pending the hearing and determination of the suit. Consequently, the court granted...
Court Disposition
interlocutory injunction and inhibition granted; costs in the cause
Orders
- Temporary injunction restraining the defendant, his agents, servants or assigns from trespassing, encroaching, wasting, constructing, selling, alienating or otherwise interfering with the plaintiffs' 5 acres on land parcel No.677 Kamwimbi “A” Adjudication section pending hearing and determination of the suit.
- Order of inhibition against land parcel No.677 Kamwimbi “A” Adjudication section pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 21 OF 2017
FORMERLY MERU ELC CASE NO.44 OF 2016
PETER MUGO………………..…………………...1ST PLAINTIFF
CATHERINE IGOKI MUGO………………………2ND PLAINTIFF
VERSUS
STEPHEN NJAGI..…………………………………DEFENDANT
RULING
1. This ruling concerns an application dated 25. 4.2016. It seeks orders:
1. That this application be certified as urgent and the same be heard ex-parte due to its urgency.
2. That this honourable court be pleased to issues an order of temporally injuction restraining the respondent whether by himself, his agents, servant or assign from trespassing / encroaching wasting, constructing, selling / alienating or otherwise interfering or dealing with plaintiff (sic) property being 5 acres clearly demarcated and fenced on land parcel No.677 Kamwimbi “A” Adjudication section pending the hearing and determination of this application.
3. That this honourable (sic) be please (sic) to issues (sic) an order of temporally (sic) injunction restraining the respondent whether by himself, his agents, servant or assign form trespassing / encroaching wasting, constructing, selling / alienating or otherwise interfering or dealing with plaintiff (sic) property being 5 acres clearly demarcated and fenced on land parcel No.677 Kamwimbi “A” Adjudication section pending the hearing and determination of this suit.
4. That the honourable court be pleased to issue an order of inhibition against land parcel No.677 Kamwimbi “A” Adjudication section pending the hearing and determination of the suit or the instant application.
5. That the honourable court be pleased to order the commanding police officer Kamwimbi police station to ensure compliance of the order.
6. Cost of this application.
7. Any other remedy benefiting the case.
2. The application is supported by the affidavit of Peter Mugo, the 1st Plaintiff and has the following grounds:
a) The plaintiff and the defendant are related as they share a grandfather and all come from the clan of Nyonga ya atu ba mbogo.
b) The plaintiff and the defendant live on land parcel NO.677 Kamwimbi “A’ Adjudication section registered in the names of defendant.
c) The plaintiff and the rest of the Nyonga clan appointed/nomited (sic) the defendant to be their representative at clan level land disputes.
d) That the defendant represented Nyonga Clan in a land dispute with a clan called Gatiri.
e) That the defendant (sic) expenses to the case and subsequent arbitrate (sic) case, objection case and eventually registrations (sic) was catered by the plaintiffs on promise the defendant will cause transfer of 5 acres on land parcels (sic) No.677 Kamwimbi “A” Adjudication section.
f) The plaintiff (sic) have been in quiet peaceful occupation of their 5 acres fenced on land parcel (sic) No. 677 Kamwimbi “A” Adjudication section since 1980.
g) The defendant has always promised the plaintiff that he shall give them their land only for him to turn back on his promise.
h) The defendant has threatened to sell the plaintiff (sic) land to their detriment and all form of police intervention has borne no fruits to the matter at hand.
i) That unless the defendant and those working at his behest are injucted by this honourable court from trespassing of (sic) whatsoever dealing with the applicant clearly demarcated and fenced 5 acres on land parcel No.677 Kamwimbi “A” Adjudication section the plaintiffs stand to suffer irreparable damage as the land is their source of income /food.
3. Having delivered a ruling concerning a notice of preliminary objection dated 12thJuly, 2016, I deem it in the interest of justice to have the matter heard expeditiously. Having considered all the filed proceedings and the totality of the circumstances of this suit, I grant prayers 3 and 4 in the application so that the matter in issue can be heard on their merits.
4. Costs shall be in the cause.
5. Parties to fully comply with order 11, Civil Procedure Rule within 30 days of today.
6. Parties to come to court to confirm compliance and to obtain a hearing date on 17. 10. 2017.
7. It is so ordered.
Delivered in open court at Chuka this 17th day of July, 2017 in the presence of:
CA: Ndegwa
Mutunga for the plaintiffs
Firm of Basilio Gitonga for defendant absent
P.M. NJOROGE
JUDGE