Case ID:185375

Cornelius Muthuri Mwega v Stanely Kailutha & 4 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case E015 of 2021

Parties:

Cornelius Muthuri Mwega v Stanely Kailutha, Kanyili Francis, Bernard Kimathi, Geoffrey Aburuki & Joseph Mugambi

Date Delivered:

10 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Cornelius Muthuri Mwega v Stanely Kailutha & 4 others [2021] eKLR

Advocates:

Ashaba holding brief for E.G. Mutuma for applicant

Court Division:

Environment and Land

County:

Meru

Advocates:

Ashaba holding brief for E.G. Mutuma for applicant

History Advocates:

Both Parties Represented

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC CASE E015 OF 2021

CORNELIUS MUTHURI MWEGA.......................................................PLAINTIFF

VERSUS

STANELY KAILUTHA................................................................. 1

ST

DEFENDANT

KANYILI FRANCIS.................................................................... 2

ND

DEFENDANT

BERNARD KIMATHI ................................................................ 3

RD

DEFENDANT

GEOFFREY ABURUKI.............................................................. 4

TH

DEFENDANT

JOSEPH MUGAMBI....................................................................5

TH

DEFENDANT

RULING

1. The notice of motion dated

21.4.2021

seeks temporary orders of injunction barring and restraining the respondents from entering, trespassing, cultivating, alienating, constructing or in any other way whatsoever interfering with the plaintiff’s quiet enjoyment use and occupation of

Parcel No. Ruiri/Rwarera/2247

pending hearing and determination of this suit.

2. The second prayer is that sub-County police commander Buuri West to enforce compliance with the order.

3. The application is supported by grounds on the face of the notice of motion and a supporting affidavit by

Cornelius Muthuri Mwega

sworn on

25

th

April, 2021

.

4. The application was duly served upon the respondents but no replying affidavit or grounds of opposition have been filed. In

Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others [2003] eKLR

the Court of Appeal held a prima facie case is established if on the material prosecuted points the court conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

5. Turning to the instant application, the applicant has narrated he acquired the suit property for value through purchase on 8.10.2013 from the estate of the late Justus Mbaabu M’Mwithimbu, subsequent to which he was adjudicated the land as per the Sub-County Land Adjudication & Settlement officer Imenti North/South/Central and Buuri’s letter dated 26

th

August, 2019; the applicant has also attached a copy of a title issued on 9

th

January, 2019 which under

Section 26 of the Land Registration Act 2012

, is a prima facie evidence on ownership.

6. There is no replying or defence to the suit by the defendants questioning the manner of acquisition and registration of the suit land in favour of the applicant.

7. In the circumstances it is my considered view the rights of the applicant under

Article 40

of the

Constitution

as read together with

Order

40 of the Civil Procedure Rules

have been violated. The application is allowed in terms of prayer No’s 3 & 4 pending hearing and determination of this suit. The suit is listed for pretrial directions within 45 days from the date hereof otherwise the orders shall automatically lapse.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 10

TH

DAY OF NOVEMBER, 2021

In presence of:

Ashaba holding brief for E.G. Mutuma for applicant

Court Clerk: Kananu

HON. C.K. NZILI

ELC JUDGE