[2021] KEELC 4113 (KLR)

REUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

E.L.C CASE NO. E001 OF 2021

THE SECRETARY GENERAL OF THE BAPTIST CONVENTION OF KENYA

JOSHUA RUTERE MUCHEKE (SUING FOR AND ON BEHALF OF THE

BAPTISTCONVENTION OF KENYA).........................PLAINTIFF/APPLICANT

VERSUS

THE DIRECTOR GENERAL KENYA

URBAN ROADS AUTHORITY........................1ST DEFENDANT/RESPONDENT

HYPERTECK CONTRACTORS

& EQUIPMENT LIMITED..............................2ND DEFENDANT/RESPONDENT

KENYA POWER & LIGHTING

COMPANY LIMITED....................................3RD DEFENDANT/RESPONDENT

THE INSPECTOR GENERAL

OF POLICE...................................................4TH DEFENDANT/RESPONDENT

THE OCS CHUKA

POLICE STATION...............................…..5TH DEFENDANT/RESPONDENT

THE HONOURABLE

ATTORNEY GENERAL.............................6THDEFENDANT/RESPONDENT

RULING

1. This application states that it has been brought to court under Section 3 and 3A of the Civil Procedure Act, Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Article 64 of the Constitution of Kenya. It seeks the following orders:

1. THAT this Application be certified urgent and be heard ex parte at the first instance and speedily thereafter.

2. THAT pending inter partieshearing and subsequent determination of this APPLICATION, a temporary injunction be issued restraining the 1st, 2nd and 3rd defendants, their agents, servants or anybody acting on their behest from entering, excavating or constructing a road on the plaintiff’s land parcel no LR KARINGANI/NDAGANI/594.

3. THAT pending inter partieshearing and subsequent determination of the PLAINT, an injunction be issued restraining the 1st, 2nd and 3rd defendant, their agents, servants or anybody acting on their behest from entering, excavating or constructing a road on the plaintiff’s land parcel no LR KARINGANI/NDAGANI/594

2. The application is supported by the affidavit of Joshua Rutere Mucheke sworn on 4th February, 2021 and has the following grounds:

a. That the Plaintiff/Applicant is the acting Secretary General of the Baptist Convention of Kenya, a church registered under the Societies Act.

b. That the plaintiff/Applicant is mandated to handle all legal matters pertaining the convention under the Constitution of the Baptist Convention of Kenya

c. That the Baptist Convention of Kenya is the sole registered proprietor of land parcel no LR; KARINGANI/NDAGANI/594 which property is freehold and absolute.

d. That the plaintiff has constructed the following developments on the land;

Baptist Convention in Kenya- Chuka Church

A private primary school

Commercial building with rental shops

d. That on or around 7th February 2020 agents of the 1st defendant/respondent marked buildings in Chuka township that were ostensibly on a road reserve, for demolition to pave way for tarmacking of the “Moi Girls” road .

e. That the commercial building belonging to the plaintiff/applicant and standing on land parcel no LR; KARINGANI/NDAGANI/594 WAS MARKED WITH A RED ‘X’ SIGN.

f. That the plaintiff traveled to the regional offices of the 1st defendant in Meru town to inquire why part of its commercial building was painted with an X sign but was not given any audience.

g. That on the morning of 4th April 2020 at 6am, officers of the 1st defendant demolished the Applicant’s commercial building standing on LR KARINGANI/NDAGANI/594 in Chuka town.

h. That the said building had been constructed with all relevant statutory approvals and stood on Private Land.

i. That a survey exercise conducted by the survey of Kenya under the Ministry of Lands and Physical planning established that the demolished building stood on LR KARINGANI/NDAGANI/594.

j. That if the orders sought are not granted the plaintiff/applicant will stand to suffer irreparable loss which cannot be compensated by way of damages.

k. No party stands to be prejudiced in the event the orders sought are granted.

3. On 15th February, 2021, this court issued the following orders:

1. That the application is NOT certified urgent but will be heard on priority basis.

2. That the application be served upon all the Respondents within 7 days of today.

3. That a temporary injunction be and is hereby issued restraining the 1st, 2nd and 3rd defendants, their agents, servants or anybody acting on their behest from entering, excavating or constructing a road on the plaintiff’s parcel No. LR. KARINGANI/NDAGANI/594.

4. That interpartes hearing on 2nd March, 2021.

4. On 2nd March, 2021, advocate Muthomi Gitari, representing the plaintiff and advocate Justin Kiongo, representing the 1st, 4th, 5th and 6th defendants asked the court to confirm the interim orders issued on 15th February, 2021 so that the parties can expedite the hearing of the main suit. In the circumstances, the said orders are hereby confirmed and this application is deemed heard and determined.

5. The following orders are issued:

a. For avoidance of doubt, this application is deemed heard and determined with costs to be in the cause.

b. The 1st, 4th, 5th and 6th defendants are granted 30 days to file and exchange their defence/defences and to fully comply with order 11 of the Civil Procedure Rules.

c. Orders issued today to be served upon the absent defendants by the plaintiff.

d. By consent, directions to fix a hearing date to be taken on 20. 4.2021.

Delivered in open Court this 2nd day of March, 2021 in the presence of:

CA: Ndegwa

Muthomi Gitari for the plaintiff

Kiongo for AG for 1st, 4th, 5th and 6th defendants

HON. JUSTICE Dr. P. M. NJOROGE,

ELC JUDGE.