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ELCPartially AllowedChuka ELC (not stated in excerpt - application dated 20th May, 2020)· [2020] KEELC 2188 (KLR)

Frankline Japhet Njiru v Kenya Urban Roads Authority (KURA) & 4 others [2020] KEELC 2188 (KLR)

Environment and Land Court
2 June 2020
1,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Chuka court blocked a county road project through a private Chuka plot, but a surveyor must still confirm whether the land sits on a road reserve.

What this practically means

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Executive summary

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This is an interim ruling of the Environment and Land Court at Chuka delivered by P. M. Njoroge, J, on 2nd June 2020 in an application dated 20th May 2020 brought by Franklin Japhet Njiru under Sections 3 and 3A of the Civil Procedure Act, Orders 40 Rule 1 and 51 Rule 1 of the Civil Procedure Rules, and Articles 40 and 64 of the Constitution. The applicant claimed ownership of Plot No. 26 B Chuka Township measuring 20 feet by 120 feet, supported by a PDP and land rates receipts. He alleged that on 18th February 2020 an agent of the 1st respondent issued a demolition notice on the ground that part of the plot lay on the road reserve for the proposed 'Moi Girls Road', and that on 4th April 2020 the 4th and 5th respondents demolished a 20 feet by 20 feet portion, with loss assessed by Roma Valuers at Ksh. 2,893,170. He sought interim injunctions restraining road construction affecting the plot, an order for a district surveyor to establish the plot's boundaries vis-à-vis the road, and service of orders on the OCS Chuka. On 22nd May 2020 the court certified the matter urgent and granted prayers 2 and 5 exparte. At the interpartes hearing on 2nd June 2020 only the 2nd and 3rd defendants were represented; counsel for them was not opposed to prayers 2 and 4. The court directed that the application be canvassed by written submissions, granted the defendants 14 days to respond, scheduled directions for 29th September 2020, and granted and extended prayers 2 and 5, restraining construction affecting the plot pending further orders. The survey and costs prayers were left for the substantive ruling. No authorities were cited and no costs order was made.

Key legal issues

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01

Whether interim injunctive relief should issue over Plot No. 26 B Chuka Township pending determination of the application

Holding

The court granted prayer 2, restraining the respondents from constructing 'Moi Girls Road' or any other road affecting Plot No. 26 B Chuka Township, and extended the interim orders pending inter partes hearing; the 2nd and 3rd defendants were not opposed to interim relief

Reasoning

The applicant asserted ownership of Plot No. 26 B, measuring 20 feet by 120 feet, backed by a PDP and receipts for land rates paid to the 2nd and 3rd respondents. A notice of demolition was issued on 18th February 2020 and part of the plot was demolished on 4th April 2020, with loss estimated at Ksh. 2,893,170. The court had already granted prayers 2 and 5 exparte on 22nd May 2020, and with the 2nd and 3rd defendants not opposing, extended those orders.

p. 3
02

Whether the boundary dispute over Plot No. 26 B vis-à-vis 'Moi Girls Road' required determination by a surveyor

Holding

The applicant's prayer for a survey to establish the boundaries and perimeters of the plot was left for determination in the ruling to follow after written submissions; the core dispute was identified as whether the plot or part of it lies on the road reserve

Reasoning

The applicant contended the plot was not on the road reserve and that there was an 11-meter wide space for roads which the respondents ignored. The respondents' position, through the 1st respondent's agent, was that a 20 feet by 20 feet portion lay on the road reserve. The court noted the parties' agreement to canvass the application by written submissions and scheduled directions for the ruling rather than determining the survey prayer immediately.

p. 2

Legal principles established

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  • An interim injunction may issue to preserve the status quo over land alleged to be under threat of demolition or road construction pending hearing of the application and main suit, even where the respondent is not opposed

Court orders

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  1. 1.The application to be canvassed by way of written submissions
  2. 2.Defendants/Respondents granted 14 days to respond to the application
  3. 3.Plaintiff/applicant to file and exchange written submissions within 14 days after receipt of defendants' responses; defendants to file and exchange written submissions within 14 days thereafter
  4. 4.Parties to come to court for directions to fix a date for delivery of the ruling on 29th September, 2020
  5. 5.Applicant to serve the orders issued on 2nd June 2020 upon the 1st, 4th, 5th and 6th defendants within 10 days
  6. 6.Parties to file all pleadings in both hard and soft copies, soft copies in Word Format Font 12
  7. 7.Prayers 2 and 5 granted and extended
  8. 8.Interim injunction restraining the respondents from constructing 'Moi Girls Road' or any other road affecting Plot No. 26 B Chuka Township (prayer 2)
  9. 9.Orders to be served upon the OCS Chuka Police Station for compliance (prayer 5)

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticles 40 and 64
Jurisdiction invoked
Sections 3 and 3A Civil Procedure Act; Orders 40 Rule 1 and 51 Rule 1 Civil Procedure Rules; Articles 40 and 64 of the Constitution of Kenya

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, "Frankline Japhet Njiru v Kenya Urban Roads Authority (KURA) & 4 others [2020] KEELC 2188 (KLR)", Case Analysis (2020). Chuka ELC (not stated in excerpt - application dated 20th May, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2188/eng@2020-06-02

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