Agnes Muthoni Nyaga,Evriter Karimi Nkari,Hellen Nkatha Nkari & Christine Kanjiru Nkari v Alice C. Alexander,Albert Mugendi Nkari,Frankline Kirimi Nkari,Peter Murimi & Joline Muthoni Gachunki [2017] KEELC 3515 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ENVIRONMENT AND LAND CASE NO. 62 OF 2017

FORMERLY MERU ENVIRONMENT AND LAND CASE NO. 104 OF 2015

AGNES MUTHONI NYAGA…………………………………….1ST PLAINTIFF

EVRITER KARIMI NKARI……………………………………....2ND PLAINTIFF

HELLEN NKATHA NKARI……………………………………...3RD PLAINTIFF

CHRISTINE KANJIRU NKARI…………………………………4TH PLAINTIFF

VERSUS

ALICE C. ALEXANDER……………………………………...1ST DEFENDANT

ALBERT MUGENDI NKARI…………………………………2ND DEFENDANT

FRANKLINE KIRIMI NKARI…………………………………3RD DEFENDANT

PETER MURIMI……………………………………………....4TH DEFENDANT

JOLINE MUTHONI GACHUNKI…………………………….5TH DEFENDANT

RULING

1. This ruling concerns 2 applications. The 1st one was filed by the plaintiff and is dated 11. 11. 12015. it seeks the following orders:

1. That the honourable court be pleased to certify this application urgent owing to its urgent nature, hear the same exparte in the first instance and issue orders accordingly.

2. That the honourable court be pleased to issue a temporary order of injunction restraining the 1st, 2nd, 3rd, 4th and 5th defendants, their servants, agents, employees, assignees and/or anybody else acting on their behalf from selling, disposing off and/or in whichever way from dealing with land parcels Nos.Karingani/Ndagani/8994, 8995 and 8996 pending the hearing and determination of this suit.

3. That pending the hearing and determination of this application interparties, honourable court be pleased to issue a temporary order of injunction restraining the 1st, 2nd, 3rd and the 5th defendants, their agents, employees, assignees and/or anybody else acting on their behalf from selling, disposing off and/or in whichever manner dealing with Land parcel Nos. Karingani/Ndagani/8994, 8995 and 8996 pending the hearing and determination of this application interparties.

4. That the honourable court be pleased to issue a temporary order of injunction restraining the 4th and 5th defendants, their servants, agents, assignees and/or anybody else acting on the (sic) behalf from trespassing, entering, remaining therein, fencing, cultivating and/or in whichever manner dealing with any part of Land Parcel Nos. Karingani/Ndagani/8994, 8995 and 8996 pending the hearing and determination of this suit.

5. That pending the hearing and determination of this application interparties, the honourable court be pleased to issue a temporary order of injunction restraining the 4th and 5th defendants, their servants, agents, employees, assignees and/or anybody else acting on their behalf from trespassing, entering, remaining therein, fencing, cultivating and/or whichever way from dealing with Land Parcel Nos.Karingani/Ndagani/8994, 8995 and 8996 pending the hearing of this application interparties.

6.  That the honourable court be pleased to issue an order of inhibition against Land Parcel Nos.Karingani/Ndagani/8994, 8995 and 8996 pending the hearing and determination of this application interparties and thereafter until the further orders of this honourable court.

7. That the orders to be issued by the honourable court herein be served upon the O.C.S, Chuka Police Station to ensure compliance.

8. That the honourable court be pleased to issue penal notice for non compliance of any court orders to be issued herein upon service.

9. That the costs of this application be provided for and the same be borne by defendants/respondents.

2. The application is supported by the affidavit of AGNES MUTHONI NYAGA and has the following grounds:

a) The original Land Parcel No. Karingani/Ndagani/231 was a family land and was registered in the names of M’Moga M’Mwira – deceased.

b) Pursuance to Meru Succession Cause NO.230 of 1995 the said Land Parcel No. Karingani/Ndagani/231 was subdivided into four (4) portions namely Land Parcel NOs.4758, 4759, 4760 and 4761. Land Parcel Nos. Karingani/Ndagani/4758 was registered in the name of the 1st defendant in trust for the plaintiffs, the 2nd and 3rd defendant respectively whereas the other three (3) land parcels were registered as follows:-

i) Land parcel Nos. Karingani/Ndagani/4759 and 4761 were registered with Kinyua Eliphas Njoka and Justus Gatari Eliphas respectively who are cousins to the plaintiffs, the 2nd and the 3rd defendants respectively.

ii) Land parcel No. Karingani/Ndagani/4760 was registered with Harriet Ciakaura Njeru who is the auntto the plaintiffs, the 2nd and the 3rd defendants respectively.

c) The plaintiffs herein together with the 2nd and 3rd defendants are children of 1st defendant.

d)Without the consent and/or permission of the plaintiffs/applicants, the 1st, 2nd and 3rd defendants secretly colluded and fraudulently caused Land Parcel No. Karingani/Ndagani/4758 to be sub-divided into three (3) portions namely Karingani/Ndagani/8994, Karingani/Ndagani/8995 and Karingani/Ndagani/8996 and are now in the process of selling and/or disposing off some parts of the said parcels of land to the 4th and 5th defendants.

e) The plaintiffs have learnt that the sole purpose of secretly and fraudulently sub dividing Land Parcel Karingani/Ndagani/4758 was purely to ensure that the plaintiffs/applicants do not get a share of the family land, to wit Land Parcel No. Karingani/Ndagani/4758.

f) The plaintiff/applicants are entitled to equal shares of Land Parcel No.Karingani/Ndagani/4758 together with 1st, 2nd and 3rd defendants.

g) Because Land Parcel No.Karingani/Ndagani/4758 was family land, the same was not available for subdivision with the intention of denying the plaintiffs/applicants their interest and/or rightful share of the said parcel of land.

h) It is only just and fair that the plaintiffs/applicants be granted orders sought herein to preserve their rights and interest over the suit lands.

i) No prejudice will be occasioned to the defendants if the orders sought herein are granted because in any event, the 2nd and 3rd defendants are not registered owners of the said parcels of land and they have no title over the said parcels of land whereas the 4th and 5th defendants could not purport to buy the suit lands from the 2nd and 3rd defendants who have no legal capacity to sell and/or dispose off the suit lands to them.

j) Unless the orders sought herein are granted, the plaintiffs/applicants stand to suffer irreparable loss.

k) It’s only just and fair that the orders sought herein by the plaintiffs/applicants be allowed.

3. The 2nd application is dated 20th April, 2016 and seeks orders:

1. That interim orders issued by this honourable court on 12th November, 2015 be discharged, varied and/or set aside.

2. That cost of this application be provided for.

4. The application is supported by the affidavit of Frankline Kirimi Nkari and has the following grounds:

1. That the plaintiffs/respondents obtained interim orders exparte on 12th November, 2015.

2. That the plaintiffs/respondents have refused to prosecute the application dated 11th November, 2015

3. That sixty days have lapsed since the said application was filed.

4. That interim relief granted is too wide and open to abuse.

5. On 23. 2.2017 the parties requested the court to have the 2 applications marked settled but the order of inhibition against the suit lands parcel Nos. Karingani/Ndagani/8994, 8995 and 8996 to remain.

6.  The two applications are withdrawn and it is ordered that an inhibition be placed against Land Parcel Nos.Karingani/Ndagani/8994, 8995 and 8996 until this suit is heard and determined.

7.  All parties to fully comply with order 11, CPR, within 30 days of today.

8.  Plaintiffs to serve any parties not present in court today with the orders issued by the court within 10 days of today.

9. Hearing of main suit on 23. 3.2017.

Delivered in open court at Chuka this 23rd day of February, 2017

in the presence of:

CA: Ndegwa

Ochieng Owiti h/b Kiogora Arithi for plaintiffs

Kijaru for 2nd and 4th defendants

1st and 3rd defendants absent

P.M. Njoroge

Judge