[2017] KEELC 1426 (KLR)
The court found that the plaintiffs had established ownership of the subject parcels and that the access road in question served their properties. The defendant, having been served, failed to respond or contest the application. The court accepted the plaintiffs' evidence that the defendant had blocked the access...
Source-derived case information.
- Citation
- [2017] KEELC 1426 (KLR)
- Parties
- Plaintiff: Zakayo Michubu Kibuane; Plaintiff: Susan Kagendo Kabiro; Defendant: Moses Mung’athia Samuel
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 215 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- LN Mbugua
- Legal Topics
- Interlocutory Injunctions, Access Roads, Land Adjudication, Landlocking, Enforcement of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakayo Michubu Kibuane
Plaintiff
Susan Kagendo Kabiro
Plaintiff
Moses Mung’athia Samuel
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendant from interfering with their access road pending hearing and determination of the suit.
- 2 Whether the plaintiffs have demonstrated a prima facie case with a likelihood of success to warrant the grant of the orders sought.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiffs had established ownership of the subject parcels and that the access road in question served their properties. The defendant, having been served, failed to respond or contest the application. The court accepted the plaintiffs' evidence that the defendant had blocked the access road, thereby rendering the parcels landlocked and inaccessible. Applying the principles for granting interlocutory injunctions, the court held that the plaintiffs had demonstrated a prima facie case and that the balance of convenience favoured the grant of the orders sought. The court allowed the application in terms of prayer 4, directing that the orders be served upon the OCS...
Court Disposition
application allowed
Orders
- The application is allowed in terms of prayer 4: the orders issued herein be served upon the OCS Laare Police Station to ensure compliance, for a period of 8 months.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
E & L LAND CASE NO. 215 OF 2017
ZAKAYO MICHUBU KIBUANE ………………………………..…………………1ST PLAINTIFF
SUSAN KAGENDO KABIRO ………………………..…………………………….2ND PLAINTIFF
VERSUS
MOSES MUNG’ATHIA SAMUEL …………………………………………………….DEFENDANT
R U L I N G
1. The Notice of Motion dated 17th July, 2017 seeks the following orders:-
1) Spent.
2) That this Honourable Court be pleased to issue an order of temporary injunction restraining the defendant by himself, his agents, relatives, employees and /or anybody else whomsoever acting on his behalf, from blocking, closing, fencing, cultivating, building, depositing building material and/or otherwise whatsoever interfering with the Plaintiff’ rights to use, enjoy, and /or otherwise pass through the access road extending/situate on the western side of Land parcels numbers 1825, 12530 and 11668 Antubetwe Kiongo Adjudication Section and/or serving the said parcels of land, until this application is heard and determined.
3) That this Honourable Court be pleased to issue an order of temporary injunction restraining the defendant by himself, his agents, relatives employee and /or anybody else whomsoever acting on his behalf, from blocking closing, fencing, cultivating, building, depositing building materials and/or otherwise pass through the access road extending /situate on the western side of land parcel numbers 1825, 12530 and 11668 Antubetwe Kiongo Adjudication Section amd /or serving the said parcels of land, until this suit is heard and determined.
4) That the orders issued herein be served upon the OCS laare Police Station to ensure compliance.
5) THAT ALTERNATIVELY AND WITHOUT PREJUDICE to prayers 1, 2, 3, and 4 hereinabove, this Honourable Court be pleased to order that this suit be heard and determined on priority basis.
6) That the costs of this application be provided for.
2. The Application is based on the grounds:-
i. The 1st Plaintiff/Applicant is the owner of land parcel number 11668 Antubetwe Kiongo Adjudication Section while the 2nd Plaintiff/Applicant is the owner of land parcels numbers 12530 and 1825 Antubetwe Kiiongo Adjudication Section.
ii. Land parcel numbers 1825, 12530 and 11668 Antubetwe Kiongo Adjudication Section are adjacent to each other and they are duly demarcated and fenced on the ground and the Plaintiffs have developed them by, among others, planting miraa and avocado trees besides cultivating seasonal crops like maize and beans thereon.
iii. The Plaintiffs aver that on the Western side of the said Land Parcels Numbers 1825, 12530 and 11668 Antubetwe Kiongo Adjudication Section, there is an access road serving them.
iv. On or about 26th of May, 2017, the defendant/respondent illegally, unlawfully, wrongfully and /or fraudulently closed/blocked the above-stated access road thereby rendering the said land parcels numbers 1825, 12530 and 11668 Antubetwe Kiongo Adjudication Section, landlocked, inaccessible and/or unreachable.
v. The Defendant/Respondent is now using armed goons to block the said road and he has threated to harm any person who dares to use it, including the Plaintiff/Applicants.
vi. It is in the interest of justice and fairness that this application be allowed.
3. 1st Plaintiff has also filed a Supporting Affidavit, Where he has affirmed the claims in the application.
4. No response was filed despite the fact that service was effected.
5. I therefore, find that the application is merited. The application is allowed in terms of prayer 4 of the application, for a period of 8 months.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 11TH OCTOBER, 2017 IN THE PRESENCE OF:-
CA:Janet
Rimita Miss h/b for Ngunjiri for Applicant present
HON. L.N. MBUGUA
JUDGE