[2009] KEHC 1417 (KLR)
The court found that the plaintiffs failed to demonstrate a prima facie case for an injunction against the second defendant, as the evidence showed the second defendant was only utilizing his own land and any encroachment was due to an error by the first defendant during subdivision. The surveyor's letter confirmed...
Source-derived case information.
- Citation
- [2009] KEHC 1417 (KLR)
- Parties
- Plaintiff: Stephen Maina and 6 others; Defendant: Paul Mirigi; Defendant: Another
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 86 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the second defendant
- Legal Topics
- Injunctions, Land Subdivision, Title Disputes, Encroachment, Land Access
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Maina and 6 others
Plaintiff
Paul Mirigi
Defendant
Another
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an injunction restraining the defendants from entering, fencing, building or otherwise dealing with the disputed parcels of land.
- 2 Whether the second defendant has encroached on the plaintiffs' land or is merely utilizing his own land.
Ratio Decidendi
The court found that the plaintiffs failed to demonstrate a prima facie case for an injunction against the second defendant, as the evidence showed the second defendant was only utilizing his own land and any encroachment was due to an error by the first defendant during subdivision. The surveyor's letter confirmed the error and indicated corrective action was underway. The plaintiffs' remedy lies in pursuing the first defendant to complete the resurvey and allocate the correct parcels, not in restraining the second defendant from using his land.
Court Disposition
application dismissed with costs to the second defendant
Orders
- The application for injunction is dismissed.
- Plaintiffs to pay costs to the second defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 86 of 2009
STEPHEN MAINA AND 6 OTHERS................PLAINTIFF
VERSUS
PAUL MIRIGI & ANOTHER........................DEFENDANTS
RULING
The plaintiffs claim in their plaint that although they bought their pieces of land from the first defendant and have title deeds for them, the second defendant has fenced off some of them and denied them access to those pieces of land. In the application dated 19th March, 2009, they seek an injunction to restrain the defendants from entering, fencing, building or in any other way dealing with their parcels of land.
The first defendant has not opposed the application but the second defendant has. He claims that in the course of subdividing his land the first defendant encroached onto his land and all he has done is to fence off his land. He has exhibited to the replying affidavit a letter from a surveyor apparently engaged by the first defendant admitting the encroachment during the subdivision and informing the District Land Registrar of that error and stating the corrective action is being taken. In the circumstances I cannot see how an injunction can issue to restrain the second defendant from utilizing his land as he pleases. In my view, the plaintiffs had better pursue the first defendant, who has indicated he is ready and willing to have the resurvey done so that he can give to each of them the land each bought from him, to complete the resurvey and give them their dues instead of wasting time with applications that will not take the anywhere.
For these reasons I dismiss this application with costs to the second defendant.
DATED and delivered this 5th day of October, 2009.
D.K. MARAGA
JUDGE.