Irvine Mwenda Japhet v Wilberfrce Micheni & Lisbeth Kaimuri [2021] KEELC 3266 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA ELC CASE NO. E003   OF 2021

IRVINE MWENDA JAPHET..............PLAINTIFF

VERSUS

WILBERFRCE MICHENI.......1ST DEFENDANT

LISBETH KAIMURI ..............2ND DEFENDANT

RULING

1. This application states on its face that it has been brought to court pursuant to Section 68(1) of the Land Registration Act, Order 40 Rules 1 & 2 of the Civil Procedure Rules, 2010 and section 63(e) of the Civil Procedure Act.

2. The application seeks the following orders:

1. THATthis application be certified urgent.

2. THAT pending the interpartes hearing of this application an order of temporary injunction do issue restraining the defendants whether by themselves or through their agents, servants, employees, assigns or anybody else acting at their behest and interest from entering, occupying, cultivating, farming, fencing or in any other manner whatsoever interfering with the plaintiff’s peaceful and uninterrupted occupation of L.R. NO. MWIMBI/CHOGORIA/4652.

3. THATpending the intepartes hearing of this application an order of inhibition do issue restraining the registration of dealings in respect of L.R. NO. MWIMBI/CHOGORIA/4652.

4. THAT pending the hearing and determination of this application and the main suit an order of temporary injunction do issue restraining the defendants whether by themselves or through their agents, servants, employees, assigns or anybody else acting at their behest and interest from entering, occupying, cultivating, farming, fencing or in any other manner whatsoever interfering withthe plaintiff’s peaceful and uninterrupted occupation of L.R. NO. MWIMBI/ CHOGORIA/4652.

5. THATpending the hearing and determination of this application and the main suit an order of inhibition do issue restraining the registration of dealings in respect of L.R. NO. MWIMBI/CHOGORIA/4652.

3. The application is buttressed by the affidavit of Irvine Mwenda Japhet sworn on 18th May, 2021 which states;

1. THAT the Defendants/Respondents are the registered owners of the suit land.

2. THAT the Plaintiff/Applicant has been in exclusive occupation of the suit land and has been in such occupation for a period exceeding the statutory twelve (12) years.

3. THAT recently the Defendants have entered the suit land and dug up holes in readiness for planting prompting the Plaintiff to discover that the same had  changed ownership.

4. THAT the Plaintiff/Applicant has lodged a claim predicated on the doctrine of adverse possession in respect of the suit land.

5. THAT the Plaintiff/Applicant is apprehensive that the Defendants/Respondents shall deal with the suit land in order to defeat his claim

6. THAT it is thus imperative that the suit land is preserved pending the determination of the issues at variance between the parties.

7. THAT the Plaintiff’s suit has a high chance of success.

8. THAT the Defendants shall not suffer any prejudice or inconvenience if the orders sought are granted.

9. THAT further, the instant orders are sought in order to advance the course of justice.

4. At the exparte stage ONLY prayer 3 for inhibition pending interpartes hearing of this application is granted.

5. The plaintiff is directed to serve the application upon the defendants within 14 days of today.

6. The application will be heard interpartes on 7th June, 2021.

DELIVERED IN CHAMBERS THIS 19TH DAY OF MAY, 2021 IN THE PRESENCE OF:

CA: NDEGWA

P. M. NJOROGE,

JUDGE.