[2015] KEHC 3300 (KLR)
The court found that the plaintiff/applicant had established a prima facie case as the registered owner of the suit land, and that the defendant/respondent had not opposed the application or provided any justification for their actions. The applicant demonstrated a risk of loss and damage if the orders were not...
Source-derived case information.
- Citation
- [2015] KEHC 3300 (KLR)
- Parties
- Applicant: Simon M Ekuruka; Respondent: Gatura Marigu Gacwe
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 34 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction and Inhibition Application
- Outcome
- Application allowed. Temporary injunction and inhibition orders granted as prayed. Costs in the cause.
- Legal Topics
- Interlocutory Injunctions, Land Title Disputes, Registration of Land, Possession and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon M Ekuruka
Applicant
Gatura Marigu Gacwe
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction and Inhibition Application
Legal Issues
- 1 Whether the plaintiff/applicant is entitled to a temporary injunction restraining the defendant/respondent from interfering with land parcel No. THARAKA/NKONDI “A”/1196 pending determination of the suit.
- 2 Whether an order of inhibition should be issued to prevent registration of any transactions over the suit land pending determination of the suit.
Ratio Decidendi
The court found that the plaintiff/applicant had established a prima facie case as the registered owner of the suit land, and that the defendant/respondent had not opposed the application or provided any justification for their actions. The applicant demonstrated a risk of loss and damage if the orders were not granted. In the absence of opposition and given the circumstances, the court granted the orders of temporary injunction and inhibition to preserve the subject matter of the suit pending its determination. Costs were ordered to be in the cause.
Court Disposition
Application allowed. Temporary injunction and inhibition orders granted as prayed. Costs in the cause.
Orders
- A temporary order of injunction is issued restraining the defendant/respondent, her agents, servants, employees, or anyone acting on her behalf from cultivating, occupying, moving into, alienating, disposing, charging, transferring, constructing, or in any other manner dealing with or interfering with the...
- An order of inhibition is issued inhibiting the registration of any entries, dispositions, or transactions over land parcel No. THARAKA/NKONDI “A”/1196 pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
E & L CASE NO 34 OF 2015
SIMON M EKURUKA ....................................PLAINTIFF/APPLICANT
VERSUS
GATURA MARIGU GACWE....................DEFENDANT/RESPONDENT
R U L I N G
This application is dated 11th day of May, 2015. It seeks Orders:-
THATthis Honourable Court be pleased to certify this application urgent, service thereof be dispensed with in the first instance and the same be heard ex-parte at the first instance and appropriate orders made accordingly.
THATthis Honourable Court be pleased to issue a temporary order of injunction restraining the Defendant/Respondent by herself her agents, servants and/or employees or whomsoever else acting on the Defendant/Respondent behalf or instructions from cultivating, occupying, moving into alienating, disposing, charging, transferring, constructing or in any other manner whatsoever dealing with and/or interfering with the plaintiff/applicant's possession, occupation and use of land parcel No. THARAKA/NKONDI “A”/1196 pending the hearing and determination of this application inter-partes and thereafter pending the hearing and determination of this suit.
THATthe Honourable Court be pleased to issue an order of inhibition, inhibiting the registration of any entries dispositions or any transactions over land parcel No. THARAKA/NKONDI “A”/1196 pending the hearing and determination of this suit.
THATupon issuance of the said interim orders in prayers No. 2 and 3 here above, the same be served upon the O.C.S GATUNGA POLICE POST for enforcement and also upon the County Land Registrar for registration and compliance thereof.
THATthe costs of this application be costs in the cause.
It has the following grounds:-
The Plaintiff/Applicant is the registered owner of that land parcel known and/or described as LR. NO. THARAKA/NKONDI “A”/1196.
The Defendant/Respondent has without any justifiable cause fraudulently collected the title deed for the said land parcel from the lands registry and has refused to surrender the same.
The Defendant/Respondent has now invaded the Plaintiff/Applicant land parcel aforesaid and has commenced cultivation of portions of the same.
The actions by the Defendant/Respondent are illegal fraudulent and unlawful and the same are causing the Plaintiff/Applicant to suffer loss and damage.
This application is made in utmost good faith and the prayers being sought for, if granted, will not in any way prejudice the Defendant/Respondent case, if any.
The nature and circumstances of this case are in favour of granting of the orders being sought for by the Plaintiff/Applicant.
On 08/06/2015 the Respondent was granted 14 days to respond to the application. Interpartes proceedings were to take part today, 14/07/2015. The Respondent's Advocates are not in Court. They have also not opposed the application. In the circumstances, the application is allowed. The effect is that Prayers 2, 3, and 4 are granted.
Costs shall be in the cause.
It is so ordered.
Delivered in Open Court at Meru this 14th day of July, 2015 in the presence of:-
Cc. Daniel /Lilian
Thangicia for Plaintiff/Applicant
P.M.NJOROGE
JUDGE