[2017] KEELC 3074 (KLR)
The court found that the orders for temporary injunction previously issued had lapsed and were not addressed to the correct parties. As such, the application for injunction was dismissed. Regarding the application to amend the plaint, the court noted that the defendant did not oppose the application and that the...
Source-derived case information.
- Citation
- [2017] KEELC 3074 (KLR)
- Parties
- Plaintiff: Robert Muchangi; Plaintiff: Edsor Kathuni; Defendant: County Government of Tharaka Nithi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 42 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Applications
- Outcome
- Application for injunction dismissed; application for amendment of plaint allowed.
- Legal Topics
- Injunctive Relief, Amendment of Pleadings, Joinder of Parties, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Muchangi
Plaintiff
Edsor Kathuni
Plaintiff
County Government of Tharaka Nithi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendant from interfering with their occupation and use of plot 92, Chuka Town.
- 2 Whether the plaintiffs should be granted leave to amend their plaint to enjoin third parties and address new issues arising from the defendant's documents.
Ratio Decidendi
The court found that the orders for temporary injunction previously issued had lapsed and were not addressed to the correct parties. As such, the application for injunction was dismissed. Regarding the application to amend the plaint, the court noted that the defendant did not oppose the application and that the amendment was necessary to enjoin third parties who had been issued a certificate of lease over the suit property. The court allowed the amendment to ensure all relevant parties were before the court for a comprehensive determination of the ownership dispute. Costs for both applications were ordered to be in the cause, and the plaintiffs were directed to file and serve the amended...
Court Disposition
Application for injunction dismissed; application for amendment of plaint allowed.
Orders
- The application dated 17.6.2014 for temporary injunction is dismissed with costs to be in the cause.
- The application dated 12.1.2017 for leave to amend the plaint is allowed with costs to be in the cause.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 42 OF 2017
FORMERLY MERU ELC CASE NO.14 OF 2014
ROBERT MUCHANGI……………………………………….1ST PLAINTIFF
EDSOR KATHUNI……………………………………………2ND PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF THARAKA NITHI……....…….DEFENDANT
RULING
1. This ruling relates to 2 applications. The 1st one is dated 17. 6.2014 and seeks orders:
1. That this matter be certified extremely urgent and service be dispensed with and matter be heard in the 1st instance.
2. That court be pleased to issue an order of temporary injunction to stop the defendants/respondents herein, restraining them, their agents, servants, representatives or anybody claiming through them from selling, disposing off, trespassing, allotting, allocating, evicting or in any other way interfering with the plaintiffs user and occupation of plot 92, Chuka Town pending inter-arties hearing of this application.
3. That court be pleased to issue an order of temporary injunction to stop the defendants/respondents herein, restraining them, their agents, servants, representatives or anybody claiming through them from selling, disposing off, trespassing, allotting, allocating, evicting or in any other way interfering with the plaintiffs user and occupation of plot 92, Chuka Town pending the hearing and determination of this suit.
4. That the OCS Chuka Police Station, be empowered to execute the orders of the court so granted.
5. That costs of this application be provided for.
2. The application is supported by the affidavit of ROBERT MUCHANGI and has the following grounds:
(a) That the plaintiffs herein have been occupying and making use of the suit plot with full knowledge and consent of all the predecessors of the defendant.
(b) That the plaintiffs have extensively developed the suit plot from which they earn their livelihood from the proceeds of working on the suit plot.
(c) That the plaintiffs applied through application form No.119 to legalize the ownership of the plot to the defendant but the same has not been approved.
(d) That the defendant is now eager to transfer the suit plot to strangers and the plaintiffs shall suffer irreparable loss and damage that cannot be compensated by an award of damages if the orders sought are not granted.
3. The 2nd application is dated 12. 1.2017 and seeks the following orders:
1. The plaintiff applicant be granted leave of court to amend his pleadings (plaint) to as per the annexed draft of the amended plaint.
2. That the costs of this application be provided for.
4. The application is supported by the affidavit of ROBERT MUCHANGI and has the following grounds:
(a) The defendant served the plaintiffs with his list of documents, including a certificate of lease showing that the parcel of land had been leased out to other third parties.
(b) That it is imperative that the third parties be enjoined in this suit for sufficient determination of the legal question of ownership raised.
(c) That no party shall be prejudiced if this application is allowed.
5. Orders issued in the 1st application dated 17. 6.2014 have lapsed. I note that they were issued almost 3 years ago. The orders were not addressed to the correct parties and hence the application to include 3 other parties. I dismiss the application with costs to be in the cause.
6. As the original defendant is not opposed to the application dated, 12th January, 2017, the application is allowed with costs to be in the cause.
7. The plaintiffs are ordered to amend and exchange the apposite plaint within 7 days of today.
8. Directions on 22. 3.2017.
9. It is so ordered.
Delivered in open court at Chuka this 13th day of March, 2017
in the presence of:
CA: Ndegwa
Miss Mbaikiata h/b Miss Kiome for the plaintiff
Murango Mwenda for the 1st defendant
P. M. NJOROGE,
JUDGE.