[2019] KEELC 3097 (KLR)
The court adopted the consent of the parties, which allowed the application in terms of prayers c and d. The effect is that the defendant is restrained by temporary injunction from interfering with the plaintiff's possession, cultivation, use, development, and enjoyment of one acre out of land parcel...
Source-derived case information.
- Citation
- [2019] KEELC 3097 (KLR)
- Parties
- Plaintiff: Saraphine Mbae Rithaa; Defendant: Faustino Kangori M'Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 10 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application allowed by consent in terms of prayers c and d; costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Inhibition Orders, Temporary Injunctions, Adverse Possession, Eviction, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saraphine Mbae Rithaa
Plaintiff
Faustino Kangori M'Nairobi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to an order of inhibition restraining dealings with land parcel MUTHAMBI/KANDUNGU/445 pending determination of the suit.
- 2 Whether a temporary injunction should issue to restrain the defendant from interfering with the applicant's possession and use of the disputed land.
- 3 Whether the applicant has demonstrated apprehension of irreparable harm or risk of alienation justifying interim relief.
Ratio Decidendi
The court adopted the consent of the parties, which allowed the application in terms of prayers c and d. The effect is that the defendant is restrained by temporary injunction from interfering with the plaintiff's possession, cultivation, use, development, and enjoyment of one acre out of land parcel MUTHAMBI/KANDUNGU/445 pending determination of the suit. The court recognized that the applicant had demonstrated apprehension of irreparable harm and risk of alienation, and that the parties had agreed to preserve the status quo until the main suit is heard and determined. The orders sought were therefore justified and granted by consent, with costs to be in the cause.
Court Disposition
Application allowed by consent in terms of prayers c and d; costs in the cause.
Orders
- A temporary injunction is issued restraining the defendant, his servants, agents, or any person acting on his behalf from ejecting, selling, leasing, charging, or otherwise interfering with the plaintiff's quiet, peaceful, actual, and exclusive possession, cultivation, use, development, and enjoyment of one acre out...
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 10 OF 2019
SARAPHINE MBAE RITHAA.................................................PLAINTIFF
VERSUS
FAUSTINO KANGORI M’NAIROBI..................................DEFENDANT
RULING
1. This application states that it has been brought to court under section 68 of the Land Registration Act, 2012 and sections 1A, 1B and 3A of the Civil Procedure Act.
2. The application seeks the following orders:-
That this application be certified as urgent and that it be heard ex parte in the first instance.
a. That an order of inhibition do issue restraining any dealings whatsoever with land parcel no. MUTHAMBI/KANDUNGU/445 pending the hearing and determination of this application.
b. That an order of inhibition do issue restraining any dealings whatsoever with land parcel no. MUTHAMBI/KANDUNGU/445 pending the hearing and determination of the main suit or until further orders of this court
c. The court do issue an order for temporary injunction restraining the defendant whether by himself, his servants, agents or any person whomsoever acting on his behalf from doing any of the following acts that is to say ejecting, selling, leasing, charging or otherwise interfering with the Plaintiff/Applicants quiet, peaceful, actual and exclusive possession, cultivation, use, development and enjoyment of the portion measuring one acre (1) out of land parcel no. MUTHAMBI/KANDUNGU/445 pending the hearing and determination of this suit.
d. That the costs of this application be provided for.
3. The application has the following grounds:
i) The Applicant has been in occupation of the suit land since 1998.
ii) That the Respondent is threatening the Applicant with eviction from the suit land
iii) That the Applicant is apprehensive that he will suffer irreparable damages if he is evicted from the suit land.
iv) The land is also in danger of being alienated or disposed of by the Defendant since it is registered in his names.
v) The Applicant has filed a suit claiming adverse possession of the suit land and the said suit has overwhelming chances of success.
4. When the application came up for interpartes hearing the parties proffered a consent which was in the following terms:
BY CONSENT “ The application dated 13th May, 2019 be allowed in terms of prayers c and d. Costs to be in the cause.”
5. The consent was signed by advocate Ann N. Kithaka for the applicant and advocate Rimita, holding brief for advocate I.C. Mugo for the respondent.
6. The consent is adopted as an order of this court. Consequently, prayers c and d are allowed and costs shall be in the cause.
7. This application is deemed heard and determined.
8. It is so ordered.
Delivered in open Court at Chuka this 29th day of May, 2019
in the presence of:
CA: Ndegwa
Miss Kithaka for the Applicant
Rimita h/b I.C. Mugo for the Respondent
P.M. NJOROGE
JUDGE