Mbijiwe Marangu Muchiri v Kabirichu Joshua, Japhet Kaimenyi Ndatho & Francis Kaburu M'marete [2015] KEHC 1184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ELC 81 OF 2012 (O.S)

MBIJIWE MARANGU MUCHIRI............….............................................PLAINTIFF

VERSUS

KABIRICHU JOSHUA..................................................................1ST DEFENDANT

JAPHET KAIMENYI NDATHO......................................................2ND DEFENDANT

FRANCIS KABURU M'MARETE...................................................3RD DEFENDANT

R U L I N G

This ruling relates to two applications, both filed by the plaintiff.  The first application is dated 20th June, 2012 and seeks orders:

THAT service of this application be dispensed with in the first instance.

THAT  this application be certified urgent in the circumstances and temporary orders for injunction and inhibition and restriction be issued inhibiting and restricting registration of any dealing in land parcel NO.ABOTHUGUCHI/KAONGO/514 till the hearing and determination of this application.

THAT this Honourable court be pleased to grant temporary orders for injunction and inhibition and restriction of any dealing in the Land Parcel No. ABOTHUGUCHI/L. KAONGO/514 until the determination of this suit or further orders from this court.

THAT this Honourable court be at liberty to grant any other or better order(s) that it may deem fit and just I the circumstances of this application and the suit generally.

COSTS of this application be provided for.

The application is supported by the affidavit of MBIJIWE MARANGU, the plaintiff and has the following grounds:

The defendants particularly 2nd and 3rd are being very hostile to the plaintiff to the extent of threatening to forcefully evict the plaintiff from the suit land.

The plaintiff is an old man of straw while the defendants are rich and powerful men who are extremely unfriendly and troublesome to the family of defendant.

The Court has the duty to preserve the suit properties.

The Applicant/Plaintiff has an arguable and prima facie case against the defendants.

On 26. 10. 2014, by consent, advocates representing the parties agreed to have the 2 applications marked as settled save that an inhibition be registered against Land Parcel No. ABOTHUGUCHI L. KAONGO/514 until this suit is heard and settled.  I adopt the consent as an order of this court.  I also rule as follows:

An order of Inhibition is issued against Land Parcel No. ABOTHUGUCHI/L. KAONGO/514 until this suit is heard and determined.

Parties to fully comply with Order 11, CPR within 30 days.

The 2nd application is dated 16th June, 2014 and seeks the following orders:

THAT this application be certified as being urgent  and it be heard during the Court's vacation.

THAT prayers numbers 1, 3, and 4 thereof be granted ex parte IN the first instance.

THAT pending the hearing and determination of this application inter partes or until further orders of the court an order of a temporary injunction do issue restraining the 3rd defendant whether by himself, agents and/or servants from trespassing upon, wasting, cutting trees and/or vegetation or anything growing on the suit premises or in any other way interfering with the Plaintiff's user, enjoyment and occupation of land parcel No. ABOTHUGUCHI/L. KAONGO/497.

THAT a copy of the court order  issued in terms of prayer (3) above under the seal of this Honourable Court be served upon the Officer Commanding Gaitu Police Base to enforce its compliance.

THAT pending the hearing of the substantive suit an order of temporary injunction to issue restraining the 3rd defendant whether by himself, agents and/or servants from trespassing upon, wasting, cutting trees and/or vegetation or anything growing on the suit premises or in any other way interfering with the Plaintiff's user, enjoyment and occupation of land parcel No. ABOTHUGUCHI/L. KAONGO 497.

THAT there be such other order as this Honourable Court deems fit and expedient in the aid of justice.

THAT the costs of this application be provided for.

The application has the following grounds:

THAT the plaintiff/Applicant is in exclusive possession and occupation of and has extensively developed the suit land.

THAT the 3rd Defendant/Respondent herein has intentionally, illegally and without the Applicant's permission or any colour or right whatsoever trespassed upon the suit land and committed acts of wastage by cutting trees and/or vegetation thereon.

THAT the 3rd Defendant/Respondents action is intended and meant to deny the Plaintiff/Applicant quiet user and peaceful occupation and enjoyment of his parcel of land.

THAT the Plaintiff/Applicant is fearful that if not restrained, the 3rd Defendant/Respondent may continue with the said trespass and acts of wastage thereon.

THAT indeed the Plaintiff/Applicant will suffer irreparable loss and damage.

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

By consent, earlier alluded to, no orders are issued with respect to prayers 2, 3, 4, 5 and 6 of this application.  Costs shall be in the cause.

It is so ordered.

Delivered In Open Court at Meru this 26th day of October, 2015 in the presence of:

Lilian/Daniel

Riungu for Plaintiff

Gatare Ringera for the 2nd and 3rd Defendant

P. M. NJOROGE

JUDGE