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ELCPartially AllowedNot stated in the judgment extract· [2019] KEELC 2893 (KLR)

William Mutura Kairiba v Samuel Nkari & 4 others [2019] KEELC 2893 (KLR)

Environment and Land Court
25 June 2019
PNP. M. Njoroge
2,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner whose adjudicated title was unchallenged got a temporary court order stopping neighbours from interfering with his land, pending a full hearing.

What this practically means

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Executive summary

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This was an ex-parte application under Sections 1A, 1B and 3A of the Civil Procedure Act, section 30 of the Land Adjudication Act and Order 40(1)(a) of the Civil Procedure Rules, brought by William Mutuura Kairiba against four private respondents and the 5th respondent (an adjudication officer) over parcel Mukothima 'A' Adjudication Section Gikingo Location P/No. 150. The applicant deponed that he occupied the land from 1978; adjudication and demarcation in his favour were confirmed on or about 12 February 2001 without challenge under the Land Adjudication Act mechanisms. In or about August 2018 the 1st to 4th respondents allegedly encroached, cut trees, dug trenches, deposited building materials and began construction, purportedly on plots allocated to them by the 5th respondent, who had also purported to sub-divide the applicant's parcel. Complaints to the Gatunga Land Sub-County Office were fruitless, and a consent to sue issued from the Land Adjudication Office on 3 June 2019. The applicant sought temporary and permanent injunctions, a mandatory injunction to restore the land, police assistance in service and enforcement, and costs. At the ex-parte stage the applicant relied solely on the notice of motion and supporting affidavit. Justice P. M. Njoroge found the application evinced some merit at that stage. On 25 June 2019 the court declined to certify the matter urgent but ordered a priority hearing; granted prayers 2 and 5 (temporary injunction and OCS Gatunga assistance) pending hearing and determination of the application; ordered service within five days; directed that costs be in the cause; and fixed an inter-partes hearing for 9 July 2019. The permanent and mandatory injunctions were left for determination at the inter-partes stage.

Key legal issues

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Whether interim injunctive relief should issue ex-parte to protect the applicant's adjudicated title pending inter-partes hearing

Holding

The court granted a temporary injunction (Prayer 2) and the enforcement assistance order (Prayer 5), but declined urgency certification and deferred all other prayers

Reasoning

The judge perused the pleadings and supporting affidavit of the applicant, who claimed to be the absolute proprietor of parcel P/No. 150 following adjudication and demarcation confirmed in 2001, unchallenged under the Land Adjudication Act. The respondents allegedly encroached in August 2018, cut trees, deposited materials and constructed, purportedly on allocations by the 5th respondent. Finding some merit at the ex-parte stage, the court issued the temporary injunction pending hearing and determination of the application, with service within five days and an inter-partes hearing date.

p. 4

Legal principles established

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  • At the ex-parte stage, a court need only find that the application evinces some merit to grant interim relief

Court orders

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  1. 1.The application is not certified urgent but will be heard on priority basis
  2. 2.Prayer 2 (temporary injunction restraining the respondents from trespassing, encroaching, leasing out, cutting down trees, alienating, cultivating, grazing, building or interfering with the applicant's use, occupation and title to parcel Mukothima 'A' Adjudication Section Gikingo Location P/No. 150) granted pending hearing and determination of the application
  3. 3.Prayer 5 (order directing the OCS Gatunga Police Station to assist and cooperate in service and enforcement of the court's orders) granted
  4. 4.The application and the orders issued to be properly served upon the respondents within 5 days
  5. 5.Costs of the application to be in the cause
  6. 6.Inter-partes hearing scheduled for 9.7.2019

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Land Adjudication Act, Chapter 284 of the Laws of KenyaSection 5; Section 30
  • Civil Procedure RulesOrder 40(1)(a)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; section 30 of the Land Adjudication Act; Order 40(1)(a) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "William Mutura Kairiba v Samuel Nkari & 4 others [2019] KEELC 2893 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2893/eng@2019-06-25

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