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Thomas Mumo Maingey (Suing on his own behalf and on behalf of the Franciscans of Our Lady of Good Counsel Sisters Registered Trustees, David Masika, Evergreen Crops Limited Waridi Farm Limited, Daniel Mutisya Ndonye and Valley Brook Capital Limited) v. Sarah Nyiva Hillman, Pauline Kamuba Maingey, William Daher & Director of Surveys

(2018) JELR 95145 (CA)

Court of Appeal  •  Civil Appeal 323 of 2017  •  4 May 2018  •  Kenya

Coram
Daniel Kiio Musinga, William Ouko, Stephen Gatembu Kairu

Judgement

JUDGMENT OF THE COURT

1. This is an appeal from a ruling of the Environment and Land Court at Machakos (A. O. Angote, J) given on 13th July 2017 dismissing the appellants application for interlocutory injunction to restrain the respondents from interfering with the use of a road, claimed to be a public road, and allowing an application by the 1st to 3rd respondents restraining the appellants from using the road.

Background

2. The appellant, the 1st to 3rd respondents are all beneficiaries of the estate of the late Paul Maingey (the deceased). The appellant, the 1st and 2nd respondents are the children of the deceased while the 3rd respondent is the husband of their late sister Miriam Maingey Daher.

3. The appellant, who was an administrator of the estate of the deceased, contends in the suit pending before the ELC at Machakos, that when their father, the deceased, became registered as the owner of a property known as Land Reference Number 1338/4 in 1970, there was in existence a road, kno…

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