Margaret Kalondu Musau & John Muoki Musau v Johnson Musau Muindi [2017] KEHC 2574 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 30 OF 2013

MARGARET KALONDU MUSAU .......................1ST APPLICANT

JOHN MUOKI MUSAU .......................................2ND APPLICANT

VERSUS

JOHNSON MUSAU MUINDI ..................................RESPONDENT

RULING

1. In the amended Notice of Motion dated 2nd June, 2016, the Plaintiffs are seeking for the following orders:

a. That this Honourable Court be pleased to issue an order of injunction restraining the Respondent, his agents, servants, assigness and/or surrogates from trespassing onto, encroaching upon or in any way howsoever, under any pretext or guise, interfering with the Applicants quiet possession of all those parcels of land known as Plots No. 37C, 37D, 38C, 38D, 39C, 39D, 40C and 40D within Mlolongo Area pending the hearing and final determination of this suit.

b. That the costs of this Application be provided for.

2. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that she is the lawful allotee of plot numbers 39C, 39D, 40C and 40D within Mlolongo area (the suit land);that on 28th September, 2015, the Respondent informed the Plaintiffs that he would demolish their structures and that the Respondent then issued them with notices to vacate the suit premises.

3. The Defendant did not file a response to the Application.

4. The Plaintiffs’ advocate filed brief submissions which I have considered.

5. It is not in dispute that the Plaintiffs are in possession of the suit properties.

6. The Plaintiffs have exhibited photographs which shows the structures that they have put up on the land.

7. In the absence of any document showing that the suit property was lawfully allocated to the Respondent, I find and hold that he Plaintiffs should continue being in possession of the suit land pending the hearing of the suit.

8. It is for those reasons that I allow the amended Notice of Motion dated 2nd June, 2016 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.

O. A. ANGOTE

JUDGE