James Thendu Gitau & another v John Nginga Magecha [2020] KEELC 2263 (KLR)
- Court
- Environment & Land Court
- Case number
- 2263
- Citation
- [2020] KEELC 2263 (KLR)
- Decided
- 4 June 2020
The appeal is partially allowed, with costs to the Appellants, and a temporary injunction is issued against the Defendant/Respondent, his agents, servants, and anyone claiming under him from excavating building materials, digging, charging, leasing, selling, and interfering with the land parcels pending the hearing and determination of the suit.
Facts
The Plaintiffs/Appellants were the registered owners of land parcels Ngenda/Wamawangi/904 and Ngenda/Wamwangi/903. The Defendant/Respondent had been trespassing and unlawfully excavating building materials from the land.
Issues
- Whether the ruling of the lower court should be set aside
- Whether the Plaintiffs/Appellants' application should be allowed
- Whether the Defendant/Respondent should be ordered to desist from carrying out activities that would degrade the land
Reasoning
The court finds that the lower court erred in its findings and misapprehended the facts and evidence on record. The status quo should remain as it existed before the unlawful actions of the Defendant/Respondent.
Outcome
The appeal is partially allowed, with costs to the Appellants.
Orders
- A temporary injunction is issued against the Defendant/Respondent, his agents, servants, and anyone claiming under him from excavating building materials, digging, charging, leasing, selling, and interfering with the land parcels Ngenda/Wamawangi/904 and Ngenda/Wamwangi/903 pending the hearing and determination of the suit.
- The Defendant/Respondent is allowed entry to continue in occupation and cultivation of the suit properties.
Remedies
- Preservatory orders pending the hearing of the matter as the Respondent would not suffer any prejudice.
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