[2014] KEHC 6074 (KLR)
The court found that the application was unopposed as the respondent had not filed a replying affidavit. The applicant had demonstrated service and the need for protection of the suit land pending determination of the main suit. However, the court noted the respondent's oral assertion that the land in question was...
Source-derived case information.
- Citation
- [2014] KEHC 6074 (KLR)
- Parties
- Plaintiff: Rukungi M'Mungania; Defendant: Mutembei Malundu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Trespass, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rukungi M'Mungania
Plaintiff
Mutembei Malundu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit land pending determination of the suit.
- 2 Whether the defendant has trespassed or is likely to trespass on the plaintiff's land.
Ratio Decidendi
The court found that the application was unopposed as the respondent had not filed a replying affidavit. The applicant had demonstrated service and the need for protection of the suit land pending determination of the main suit. However, the court noted the respondent's oral assertion that the land in question was public land and not the plaintiff's, and cautioned that the orders granted would only be enforceable if the applicant's land was correctly identified. The court allowed the application for a temporary injunction, emphasizing that the applicant must ensure the suit land is as claimed, and directed the local OCS to enforce compliance.
Court Disposition
application allowed
Orders
- Temporary injunction granted restraining the defendant and his agents from interfering with the plaintiff's peaceful occupation and utilization of land registration number S. THARAKA/TUNYAI “B”/721 pending determination of the suit.
- The applicant to ensure the location of the suit land is as claimed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
E & L CASE NO. 9 OF 2014
RUKUNGI M'MUNGANIA............................................................................PLAINTIFF
VERSUS
MUTEMBEI MALUNDU...........................................................................DEFENDANT
R U L I N G
This application is dated 27th January, 2014 and seeks orders:
THAT this application be certified urgent and be heard ex-parte in the first instance.
THAT pending interparties hearing of this application an order of temporary injunction be issued against the defendant, restraining him or his agents, servants, assigns successors in title, family members or anybody else acting at his behest or instance from trespassing, occupying, constructing or in any other way from interfering with the plaintiff's peaceful occupation and utilization of land reg. No. S. THARAKA/TUNYAI “B”/721.
THATpending hearing and determination of this suit an order of temporary injunction be issued against the defendant, restraining him or his agents, servants, assigns successors in title, family members or anybody else acting at his behest or instance from trespassing, occupying, constructing or in any other way from interfering with the plaintiff's peaceful occupation and utilization of land reg. NO. S. THARAKA/TUNYAI “B”/721.
THATcost of this application be provided for.
Prayer 1 is spent. Prayer 2 was granted on an interim basis on 28. 1.2014.
The application was heard interpartes on 24th February, 2014.
Mr. Kaimenyi for the applicant submitted that the application was unopposed as the respondent had not filed any response. He referred the court to the filed Affidavit of Service which indicated that the Respondent had been properly served. He moved the court to confirm the Interim orders.
The Respondent who represented himself said that the applicant should get a surveyor to ascertain his land. He said that the land he had used was public land in which there was a market, a public hospital, a Chief's office, an assistant Chief's office and a shade from where public meetings were addressed. He was categorical that the applicant's land was elsewhere.
I note that should the respondent be correct, then the court may end up issuing orders not capable of being enforced. The court takes Judicial notice of this information, even though the respondent has not filed a replying affidavit in opposition of the application.
This application is allowed in terms of prayer 3. The applicant should ensure that the location of the suit land is where he claims that it is. I further order, as I did on 28. 1.2014 that the OCS in charge of the area where the suit land is situated does ensure compliance with prayer 3 in the application.
Delivered in Open Court this 31st day of March, 2014 in the presence of:
Cc. Daniel
Kaimenyi for Applicant/Plaintiff
Mutembei Malunde - Defendant.
P. M. NJOROGE
JUDGE