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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 2882 (KLR)

Peter Kaaria & another v Abert Musyoka Muriungi [2019] KEELC 2882 (KLR)

Environment and Land Court (not expressly named; judge styled 'JUDGE')
24 June 2019
PNP.M. Njoroge
779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Chuka court stopped a neighbour from building on or blocking access to disputed land, but refused to demolish anything or fast-track the case as urgent.

What this practically means

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Executive summary

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This is an interlocutory decision of the High Court/Environment and Land Court sitting at Chuka delivered on 24th June 2019 by P.M. Njoroge J. The plaintiffs, Peter Kaaria (1st plaintiff) and Fredrick Gitonga Mati (2nd plaintiff), moved the court by notice of motion dated 20th June 2019 under sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules. They claimed that the 1st plaintiff is the sole proprietor of LR. Meru South/Kamwimbi "A"/2174, that the defendant had wrongfully entered a portion of it and begun erecting a stone house, and that the structure had blocked the public road of access, leaving them without reasonable exit and blocking access to the 2nd applicant's parcel LR. Meru South/Kamwimbi "A"/2170. They sought urgent certification, an injunction restraining entry and interference with possession, an injunction against blocking the access road, an order that the OCS Chuka Police Station provide security for forcible removal of the structure, and costs. At the inter partes hearing Mr. Mutani abandoned prayer 2, conceding the defendant could enter the land as he had other structures there, and sought prayer 3 in amended form confined to constructing a building or blocking the public road of access. The court declined urgency certification but directed a priority hearing; granted the amended prayer 3 as a temporary injunction; directed proper service within the stipulated time before the inter partes hearing; directed the OCS Chuka Police Station to ensure the disputed construction and any blockage of the access road are stopped; and fixed the inter partes hearing for 3.7.2019. No costs order was made. The suit's substantive claims remain pending.

Key legal issues

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01

Scope of the temporary injunction over the suit land

Holding

The court granted a temporary injunction only against constructing a building or blocking the public road of access, after the plaintiffs abandoned the broader restraint against the defendant entering the land.

Reasoning

Counsel for the applicants informed the court at the inter partes hearing that prayer 2 was abandoned because the defendant had other structures on the land and there was no objection to his entry. The court therefore confined the injunction to the amended prayer 3 concerning construction on, and blockage of, the public road of access. It also gave the applicants an opportunity for proper service and an inter partes hearing before final determination.

p. 2
02

Role of police in enforcement of the injunction

Holding

The OCS Chuka Police Station was directed to ensure that the disputed construction and any blockage of the public road of access are stopped pending the inter partes hearing.

Reasoning

The applicants had sought security for forcible removal and demolition of the defendant's structure. The court did not order removal or demolition at this interlocutory stage; instead it limited the police direction to ensuring that further construction of the building in dispute and any blockage of the public road of access to the suit land are stopped, preserving the status quo until the inter partes hearing.

p. 2

Legal principles established

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  • A temporary injunction may issue to restrain the erection of a structure or blockage of a public road of access pending inter partes hearing, enforceable with police assistance.

Court orders

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  1. 1.Application NOT certified urgent but to be heard on priority basis
  2. 2.Prayer 3 granted in amended form restraining the defendant, his employees, relatives and/or anybody else acting on his behalf from constructing a building or blocking the public road of access leading to LR. No. Meru South/Kamwimbi "A"/2174
  3. 3.Application to be properly served upon the defendant within the legally stipulated time before inter partes hearing
  4. 4.The OCS, Chuka Police Station, directed to ensure that construction of the building in dispute and any blockage of the public road of access leading to LR. No. Meru South/Kamwimbi "A"/2174 is stopped
  5. 5.Inter partes hearing fixed for 3.7.2019

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticle 40(1)
Jurisdiction invoked
Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kaaria & another v Abert Musyoka Muriungi [2019] KEELC 2882 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2882/eng@2019-06-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.