ALEXANDER MBUGUA & MWARI MBUGUA v BEATRICE MUTUNGI M’TUAMIKWA & EVEREST ENTERPRISES LTD [2011] KEHC 447 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HCCC 118 OF 2011 O.S

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CAP 22 SECTION 7 37 & 38.

AND

IN THE MATTER OF REGISTRED LAND ACT CAP 300

IN THE MATTR OF LAND CONTROL ACT CAP 302

IN THE MATTER OF AN APPLICATION BY ALEXANDER MBUGUA AND MWARI MBUGUA UNDER THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA THAT THEY BE REGISTERED AS PROPRIETORS OF LAND PARCEL

NOS. LAIKIPIA/KALALU/618 & 619 MEASURING APPROXIMATELY 30 ACRES OR THEREABOUTS.

AND

FOR A DECLARATION TO THE LAND REGISTRAR UNDER SECTION 30 OF THE REGISTERED LAND ACT TO REGISTER THE APPLICANTS AS THE PROPRIETORS OF LAND PARCEL NOS. LAIKIPIA/KALALU/618 & 619 MEASURING 30 ACRES OR THEREABOUTS.

ALEXANDER MBUGUA………………….................................................………..1ST PLAINTIFF

MWARI MBUGUA……………………...................................................………….2ND PLAINTIFF

VERSUS

BEATRICE MUTUNGI M’TUAMIKWA….................................................……..1ST DEFENDANT

EVEREST ENTERPRISES LTD……..............................................................…2ND DEFENDANT

R U L I N G

This is a Notice of Motion it is dated 23rd August 2011. It has been brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Section 63(e) of the Civil Procedure Act Laws of Kenya and any other enabling provisions of the law. It seeks the following orders:-

1. …

2. That pending the inter-partes hearing of the application, the honourable court be pleased to issue an order of temporary injunction restraining the defendants, their workers, agents, servants, contractors or anybody else acting at their behest, direction, contract or employment from entering, occupying or dealing in any manner whatsoever with the Plaintiffs’ occupation and use of land parcel Nos. LAIKIPIA/KALALU/618 in the Plaintiffs’ possession.

3. That the honourable court be pleased to issue an Order of temporary injunction restraining the Defendants, their workers, agents, servants, contractors or anybody else acting at their behest, direction, contract or employment from entering, occupying, remaining or dealing in any manner whatsoever with the plaintiffs occupation and use of Land parcel Nos. LAIKIPIA/KALALU/618 & 619 in the plaintiff’s possession pending the hearing and determination of this suit.

4. That it is only fair and just that this application be allowed.

The application is supported by the following grounds:-

1. That the plaintiff are entitled by reasons of adverse possession to land parcel Nos. LAIKIPIA/KALALU/618 & 619 which they have been in actual possession and occupation for over 15 years.

2. That the Defendants have illegally and without any colour right and developments thereon encroached upon the suit lands and destroyed the Plaintiffs crops and threatened the Plaintiffs with forcible eviction.

3. That if the Plaintiffs are evicted from the said land which they have greatly developed, they will suffer irreparable loss and damage and this application and indeed the suit herein will be rendered nugatory.

4. That it is only fair and just that this application be allowed.

Dated Signed and delivered at Meru this 19th day of October  2011

LESIIT J.

JUDGE