Joshua Kithinji M'anyuki v Patrick Muthaura M'mukaria [2015] KEHC 1209 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL CASE NO. 137 OF 2012 (OS)

JOSHUA KITHINJI M'ANYUKI.................................................................................PLAINTIFF

VERSUS

PATRICK MUTHAURA M'MUKARIA..................................................................DEFENDANT

R U L I N G

This ruling relates to 2 applications.  The 1st one, filed by the plaintiff is dated 26th June 2012 and seeks orders:

THAT this application be certified urgent and be heard Ex-parte in the first instance.

THAT this Honourable Court be pleased to issue orders of Temporary Injunction restraining the Respondent/Defendant by himself, his servants and/or agents from entering, remaining cultivating building, selling or otherwise howsoever interfering with land Reference No. AKITHI/AKITHI/1138 until this suit is heard and determined or until further order of this court.

THAT this Honourable Court be pleased to make an order o inhibition against land Reference No. AKITHI/AKITHI/1138 pending hearing and determination of this suit or until further orders of the Court.

THAT costs of this application be provided for.

The application is supported by the affidavit of Joseph Kithinji M'Anyuki the Plaintiff/Applicant and has the following grounds.

THAT the plaintiff and his family have lived on the said land from the year 1988 and they have developed the same extensively by building house, a kiosk thereon for trading in business, planting crops; namely maize and beans and planting trees.

THAT the Plaintiff/Applicant has filed a suit in respect of the said land seeking orders to have the same registered in his name since he has acquired it by adverse possession.

THAT the suit has not been fixed for hearing.

THAT the respondent neither lives nor cultivates on the said land.

THAT the defendant has of late been visiting the said land and behaving suspiciously.

THAT it is necessary to maintain the status quo until the matter is heard  and decision made.

The second application is dated 12. 11. 2014 and seeks orders:

a)    That this application be certified as urgent, be heard and determined on priority basis.

b)    That this Honourable Court be pleased to discharge and or set aside an order of injunction dated 5th July, 2012.

c)   That this honourable Court be pleased to lift an inhibition placed on the defendants L.R. AKITHII/AKITHII 1138.

d)     Costs be in the main cause.

This application is supported by the affidavit of Patrick Muthaura M'Rukaria, the defendant and has the following grounds:

a)      The Defendant is the registered owner of the land.

b)      The plaintiff has not been on the suit land nor has he developed the same and has his own land adjacent to the plaintiff.

The parties in their submissions proffer diametrically opposed submissions.  The main suit by the plaintiff seeks determination that the plaintiff seeks determination that the plaintiff had acquired absolute ownership of Land Parcel NO. AKITHI/1138 by way of adverse possession.  Some of the submissions proffered by the parties can only be tenable at the hearing of the main suit and not at his interlocutory state.

I have carefully examined respecting pleadings, submissions and authorities proffered by the parties.  The issue of who is in possession of the suit land had not been brought out clearly.  The  defendant submits that the plaintiff has never occupied or developed the suit land.  The plaintiff asserts an opposite position.

I note the order of inhibition granted through the plaintiff's application dated 26th June, 2012 has been in existence since 5th July, 2012.  this is over 3 years ago.

I need no reinvent the  wheel.  The Court of Appeal, in the case of Mbuthia Versus Jimba Credit Corporation [1988] KLR1 although it was dealing with how to treat an order of inhibition, gave guideline regarding how interlocutory applications should be handled.  It opined as follows:

“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side's propositions.  The lower court judge in this case had  gone far beyond his proper duties and made final findings on disputed  affidavits.”

Taking into account the relative weight of the parties propositions, I rule as follows:

Prayer 3 for an order of Inhibition in the plaintiff's application dated 26. 6.2012 is granted

Prayer 2 for injunctive orders in the application is denied.

The defendants' application dated 12. 11. 2014 is hereby dismissed.

Costs shall be in the case.

It is so ordered.

Delivered in Open Court at Meru this 19th day of October, 2015 in the presence of:

Cc. Daniel/Lilian

Rimita for Plaintiff

Defendant or Advocate Absent

P. M. NJOROGE

JUDGE