[2016] KEHC 2814 (KLR)
The court found that the applicants had demonstrated exclusive, open, and uninterrupted possession of the suit land since 1989 and had made substantial developments. The respondents did not oppose the application, and the applicants established a prima facie case for the grant of temporary injunction and inhibition...
Source-derived case information.
- Citation
- [2016] KEHC 2814 (KLR)
- Parties
- Applicant: Stellah Nduru Ichunge; Applicant: Esther Karimi Ichunge; Respondent: Ezekiel Nkamani Ichunge; Respondent: Silas M'Ikirima M'Ichunge
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Originating Summons 111 of 2016
- Procedural Posture
- Originating Summons / Interlocutory Application for Injunction and Inhibition Orders
- Outcome
- interlocutory injunction and inhibition orders granted; application allowed as unopposed
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Temporary Injunctions, Inhibition Orders, Possession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stellah Nduru Ichunge
Applicant
Esther Karimi Ichunge
Applicant
Ezekiel Nkamani Ichunge
Respondent
Silas M'Ikirima M'Ichunge
Respondent
Procedural Posture
Originating Summons / Interlocutory Application for Injunction and Inhibition Orders
Legal Issues
- 1 Whether the applicants have established a prima facie case for grant of temporary injunction restraining the respondents from interfering with their occupation of the suit land.
- 2 Whether an order of inhibition should issue to preserve the suit property pending determination of the suit.
- 3 Whether the applicants are entitled to protection under the doctrine of adverse possession.
Ratio Decidendi
The court found that the applicants had demonstrated exclusive, open, and uninterrupted possession of the suit land since 1989 and had made substantial developments. The respondents did not oppose the application, and the applicants established a prima facie case for the grant of temporary injunction and inhibition orders. The court held that it was fair and equitable to preserve the suit land to allow the applicants to ventilate their claim of adverse possession. Consequently, the court granted the orders sought in prayers 3 and 5 of the application, restraining the respondents from interfering with the applicants' occupation and inhibiting any dealings with the land pending...
Court Disposition
interlocutory injunction and inhibition orders granted; application allowed as unopposed
Orders
- Temporary injunction restraining the defendants from transferring, selling, evicting, or in any way interfering with the applicants' right of user and occupation of Land Parcel No. Abothuguchi/Mariene/459 pending the hearing and determination of the suit.
- Order of inhibition issued inhibiting any dealings in Land Parcel No. Abothuguchi/Mariene/459 pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ORIGINATING SUMMONS NO. 111 OF 2016
IN THE MATTER OF L.R. NO. ABOTHUGUCHI/MARIENE/459
AND
IN THE MATTER OF THE LAND REGISTRATION ACT
AND
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT
STELLAH NDURU ICHUNGE.............................1ST PLAINTIFF/APPLICANT
ESTHER KARIMI ICHUNGE...............................2ND PLAINTIFF/APPLICANT
VERSUS
EZEKIEL NKAMANI ICHUNGE.................1ST DEFENDANT/RESPONDENT
SILAS M'IKIRIMA M'ICHUNGE..................2ND DEFENDANT/RESPONDENT
R U L I N G
1. This Application is dated 25/07/2016 and seeks orders:-
(1) THATthis application be certified urgent and heard ex-parte in the first instance on account of its urgency.
(2) THATthis Honourable Court be pleased to grant an Order of Temporary Injunction restraining the Defendants by themselves, their agents, employees, servants, assigns or any other people acting on their behest from evicting or in any other way interfering with the Applicants' right of user and occupation of Land Parcel Number Abothuguchi/Mariene/459 pending the hearing and determination of this Applicant or further orders of Court.
(3) THATthis Honourable Court be pleased to grant an Order of Temporary Injunction restraining the Defendants by themselves, their agents , employees, servants, assigns or any other people acting on their behest from transferring ,selling, evicting or in any other way interfering with the Applicants' right of user and occupation of Land Parcel Number Abothuguchi/Mariene/459 pending the hearing and determination of this suit.
(4)THATan order of Inhibition be issued inhibiting any dealings in Land Parcel No. Abothuguchi/Mariene/459 pending the hearing and determination of this application.
(5) THATan order of Inhibition be issued inhibiting any dealings in Land Parcel No. Abothuguchi /Mariene/459 pending the hearing and determination of this suit.
(6) THATthe costs of this Application be provided for.
2. The Application is supported by the Affidavit of STELLAH NDURU ICHUNGE, the 1st Applicant and has the following grounds:
(a) The Applicants have, without the permission of the Respondent, been in exclusive, actual, open and uninterrupted possession of a 1. 5 acre portion of Land Parcel No. Abothuguchi/Mariene/459 since the year 1989 and have acquired beneficial interest under the doctrine of adverse possession .
9b) The Applicants have made substantial developments on the Land including but not limited to putting up structures and introducing infrastructure in the form of water and electricity. Since 1989.
(c) The applicants will suffer irreparable loss and damage if they are evicted from the land or if the land is sold off and they thus lose the rights they have acquired over it.
(d) It is only fair and equitable to preserve the suit land to enable the Applicants to ventilate their cause.
3. The Application was heard Interpartes on 19/09/2016. The Defendant's did not deny that the Application was served on them on 08/08/2016 as intimated by the Plaintiffs. They only asked for 30 days to enable them engage the service of a lawyer.
4. In the Circumstances, the Application is not opposed and is allowed.
5. The effect is that prayers 3 and 5 are granted.
6. Costs shall be in the cause.
7. Defendants granted 30 days to engage the services of a Lawyer.
8. Directions on 14/11/2016.
WRITTEN AND DELIVERED IN OPEN COURT AT MERU THIS 19TH DAY OF SEPTEMBER, 2016 IN THE PRESENCE OF:-
CA: Daniel/James
Nyauchi for the Applicants
Ezekiel Nkamani -1st Defendant
Silas M'Ikirima -2nd Defendant
P. M. NJOROGE
JUDGE