[2013] KEHC 4080 (KLR)
The court found that the applicant had demonstrated a prima facie case with a probability of success by showing evidence of an agreement for sale, acknowledged payments, and possession of the property. The respondents did not controvert the applicant's evidence. The court applied the principles in Giella v Cassman...
Source-derived case information.
- Citation
- [2013] KEHC 4080 (KLR)
- Parties
- Plaintiff: Abel Odhiambo Were; Defendant: Margaret Audi Ong'aro; Defendant: Everlyne Akinyi Ong'aro
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 13 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Temporary injunction granted in favor of the applicant; costs awarded to the applicant.
- Judges
- EO Obaga
- Legal Topics
- Interlocutory Injunctions, Sale of Land, Specific Performance, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abel Odhiambo Were
Plaintiff
Margaret Audi Ong'aro
Defendant
Everlyne Akinyi Ong'aro
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether the applicant would suffer irreparable injury if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant of an injunction.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie case with a probability of success by showing evidence of an agreement for sale, acknowledged payments, and possession of the property. The respondents did not controvert the applicant's evidence. The court applied the principles in Giella v Cassman Brown, holding that the applicant met the threshold for grant of a temporary injunction. The court therefore granted a temporary injunction restraining the respondents from interfering with the applicant's possession of the suit property pending the hearing and determination of the suit.
Court Disposition
Temporary injunction granted in favor of the applicant; costs awarded to the applicant.
Orders
- A temporary injunction is granted restraining the respondents from interfering with the applicant's possession of Title Kitale Municipality LR 2116/260 (I 3679) pending the hearing and determination of the suit.
- The applicant shall have costs of this application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Kitale
Environmental & Land Case 13 of 2013 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
[if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
ABEL ODHIAMBO WERE.......................................………… PLAINTIFF
VERSUS
MARGARET AUDI ONG'ARO …...................................}
EVERLYNE AKINYI ONG'ARO …..................................} DEFENDANTS
R U L I N G
The Plaintiff/Applicant filed a Notice of Motion seeking orders of injunction against the Defendant/Respondents. The application came up for hearing ex-parte on 19/02/2013 when interim orders of injunction were granted. The application finally came up for inter parties hearing on 14/03/2012. The Respondents who were duly served through their advocates did not attend Court for the hearing of the application. The application therefore proceeded in their absence. The Applicant herein Abel Odhiambo Were used to be a friend of the husband of the Respondents Henry Goro Akun who is now deceased whom I shall hereinafter refer to as “the deceased”. Prior to the death of the deceased, the deceased had agreed to sell his property comprised in Title Kitale Municipality LR 2116/260 (I 3679) for a sum of Kshs. 3,000,000/-. The deceased and the Applicant appointed the firm of M/S Onditi & Co. Advocates to act for them. Initial deposit of 900,000/- was paid through the firm of m/S Onditi & Co. Advocates. The deceased was taken ill before a sale agreement could be executed. The deceased succumbed to illness and died before a sale agreement could be executed. The advocate who was to act in the transaction, Mr. Onditi of M/S Onditi & Co. Advocates also died thereafter.
The Applicant and the widows of the deceased who are the Respondents agreed to have Bruce Odeny & Co. Advocates as their lawyers. The Applicant and the Respondents entered into a sale agreement on condition that the sale was to be formalized upon the Respondents getting a confirmation of grant in respect of the estate of the deceased. The Sale agreement entered into by the Applicant and the Respondents was exhibited in the Supporting Affidavit. The Respondents had the grant of letters of administration of the estate of the deceased confirmed on 13/03/2012.
The Applicant argues that he took possession of the property soon after they agreed with the deceased on its purchase and that he has extensively developed it and that subsequent to the death of the deceased, he has been paying money to the Respondents. He exhibited documents to show payments on various dates. He contends that despite the agreement, the Respondents have been unwilling to carry on with the transaction and that they have of late been sending third parties to the suit property who are asking him to move out of the property on the ground that they have purchased it. It is on this basis that he has moved the Court for orders which he prays in the motion dated 30/01/2013.
I have gone through the application as well as the Supporting Affidavits with its annextures as well as the submissions by Counsel for the Applicant. What has been deponed in the Supporting Affidavit has not been controverted. The principles for grant of temporary injunction were well set out in the case of Giella Vs Cassman Brown & Co. Ltd. 1973 EA 358.
“The principles are firstly, an applicant must show a prima facie case with a probability of success. Secondly, an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury and thirdly, when the Court is in doubt, it will decide the application on the balance of convenience.”
In the present case, the Applicant has demonstrated that he entered into some agreement with the Respondents. This agreement has not been denied. He has also demonstrated that he has made payments which have been acknowledged in the said agreement as well as subsequent payments though paid to someone who is not the Respondents at least confirm that there was payment. In the circumstances, I find that he Applicant has shown that he has a prima facie case with probability of success. I therefore grant a temporary injunction in terms of prayer (c) of the Notice of Motion dated 30/01/2013. The Applicant shall have costs of this application.
It is so ordered.
Dated, signed and delivered at Kitale on this 10th day of April, 2013.
E. OBAGA
JUDGE
In the presence of Mr. Namiti for Plaintiff/Applicant
Court Clerk: Kassachoon.
E. OBAGA
JUDGE
10/04/2013