Virginia Kathambi Maingi v Nicholas Mwatika Mulei & 2 others [2019] KEELC 811 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 147 OF 2018

VIRGINIA KATHAMBI MAINGI ……………………………..PLAINTIFF

VERSUS

NICHOLAS MWATIKA MULEI…………………………1ST DEFENDANT

CO-OPERATIVE BANK OF KENYA LTD……………2ND DEFENDANT

COMMISSIONER OF LANDS………………………….3RD DEFENDANT

RULING

1. In the Notice of Motion dated 9th April, 2019, the Plaintiff is seeking for the following orders:

a.That status quo ante, the filing of this Application, be maintained pending the hearing and determination of the suit.

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

2. The Application is supported by the Affidavit of the Plaintiff who has deponed that he is the registered proprietor of land known as L.R. No. 337/935, Mavoko Municipality; that on 1st April, 2019, the 1st Defendant embarked on constructing a permanent wall on the suit property and that the said 1st Defendant intends to steal a match from him.

3. The Plaintiff finally averred that in the absence of conservatory orders, he stands to suffer irreparable harm and that the Defendants’ act of fencing the suit property is geared at alienating the suit property.

4. In response, the 1st Defendant’s Attorney deponed that he received a letter from the OCS Athi River, instructing him to fence the suit property because it had become a security concern in the area; that the land is adjacent to the Mavoko Chief’s office; that the Plaintiff hired goons who destroyed the perimeter fence and that an Application for injunction filed by the Plaintiff was dismissed by the court on 2nd My, 2014. The 1st Defendant’s Attorney finally deponed that the fence was erected way back in November, 2015 and that the Application should be dismissed.

5. Both the Plaintiff and the 1st Defendant’s advocate filed submissions which I have considered.

6. This suit was filed by the Plaintiff in Nairobi in the year 2013.  The Plaintiff filed a Notice of Motion dated 5th February, 2013 seeking for temporary injunction restraining the Defendants from trespassing, disposing off or in any other manner interfering with parcel of land known as L.R. No. 337/935 located in Mavoko. Upon hearing the Application, the court dismissed the Application.

7. Having filed the Notice of Motion dated 5th February, 2013, the Plaintiff cannot now file an Application whose effect is to restrain the 1st Defendant from dealing with the suit property in any manner he deems fit. The grant of an order of status quo will amount to an injunction, which has since been determined by this court.

8. In view of the Ruling of the court dated 2nd May, 2014, I am unable to grant the prayers sought in the Notice of Motion dated 9th April, 2019. The Application is therefore dismissed with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 8TH DAY OF NOVEMBER, 2019.

O.A. ANGOTE

JUDGE