[2012] KEHC 5294 (KLR)
The court found that the applicants had established a prima facie case for the grant of preservatory orders. The evidence presented, including photographs, demonstrated ongoing destruction of the forest land by the respondents, who lacked title to the suit land. The court held that the forest and indigenous trees...
Source-derived case information.
- Citation
- [2012] KEHC 5294 (KLR)
- Parties
- Plaintiff: Timothy Ingosi & 87 Others; Defendant: Kenya Forestry Reserve; Defendant: Hon. Attorney General; Defendant: Commissioner for Lands
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 12 of 2009
- Procedural Posture
- Civil Suit / Interlocutory Application for Variation of Injunction; Ruling on Ex Parte Application
- Outcome
- Application allowed. Temporary injunction granted.
- Judges
- A Mshila
- Legal Topics
- Injunctive Relief, Forest Conservation, Preservatory Orders, Waste and Destruction, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Ingosi & 87 Others
Plaintiff
Kenya Forestry Reserve
Defendant
Hon. Attorney General
Defendant
Commissioner for Lands
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Variation of Injunction; Ruling on Ex Parte Application
Legal Issues
- 1 Whether the applicants have established a prima facie case for the grant of preservatory orders to restrain the respondents from cutting trees and committing acts of waste on the suit land.
- 2 Whether the existing injunctive orders are facilitating destruction of forest land and should be varied or supplemented.
Ratio Decidendi
The court found that the applicants had established a prima facie case for the grant of preservatory orders. The evidence presented, including photographs, demonstrated ongoing destruction of the forest land by the respondents, who lacked title to the suit land. The court held that the forest and indigenous trees must be preserved, and that the status quo should be maintained to prevent further acts of waste and wanton destruction. The court therefore granted a temporary injunction restraining the respondents, their agents, or servants from cutting trees or committing acts of waste on the suit land pending the hearing and determination of the suit.
Court Disposition
Application allowed. Temporary injunction granted.
Orders
- Status quo to remain in force.
- Respondents, their agents or servants are restrained by way of temporary injunction from cutting trees (indigenous and otherwise) in the forest suit land and from committing acts of waste and wanton destruction on the suit land pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL SUIT NO. 12 OF 2009
TIMOTHY INGOSI & 87 OTHERS....................................................................PLAINTIFFS
VERSUS
KENYA FORESTRY RESERVE
HON. ATTORNEY GENERAL........................................................................DEFENDANTS
COMMISSIONER FOR LANDS
RULING
The application before this court is dated the 2nd June, 2011. The Application is brought under Order 40 Rule 7 of the Civil Procedure Rules and Section 3, 3A and 63 (B) of the Civil Procedure Act (Cap 21) and all other enabling provisions of the law.
The application was duly served on the Respondents’ Counsel on the 14th July 2011 and the Respondents did not put in any replying affidavit nor was the Respondents’ Counsel present at the hearing of the application, though duly served.
The Applicants’ Counsel therefore proceeded exparte. The order sought to be varied was extracted and annexed to the said application. The application was supported by the affidavit made by Stanley Mwangi and dated the 2nd June, 2011, who is the Zonal Officer based in Turbo where the suit land is situated.
In brief the Respondents obtained injunctive orders against the Applicants and have proceeded to commit acts of wanton destruction of the forest land by cutting down indigenous trees. The injunctive orders in force are preventing the forest officer’s from stopping the Respondent’s from destroying the forest.
The Applicants annexed photographs to their application showing how the forest is being destroyed.
Counsel for the Applicant prayed for preservatory orders that the Respondents be directed not to cut down indigenous nature trees and to stop committing acts of waste and wanton destruction of the suit land pending the hearing and determination of the suit.
From the foregoing I find that the application herein has merit. The Applicant has made out a prima facie case and shown sufficient reasons to warrant preservatory orders. The forest must be preserved. The indigenous trees must also be preserved. The suit land is also gazetted as forest land and the Respondents do not have titles to the said land.
I hereby order that the status quo now obtaining to remain in force and the Respondents, their agents or servants are hereby restrained by way of temporary injunction from cutting trees (indigenous and otherwise) in the forest suit land and committing acts of waste and wanton destruction on the suit land pending hearing and determination of the suit.
Costs shall be in the cause.
Dated and Delivered at Eldoret this 20Th day of January 2012.
A.MSHILA
JUDGE