[1998] KEHC 115 (KLR)
The court held that the applicant failed to provide any evidence, beyond her own fears and beliefs, to show that the respondent was likely to dispose of, alienate, or waste the disputed property. The court emphasized that under Order 39 Rule 1(a) of the Civil Procedure Rules, the applicant must demonstrate by...
Source-derived case information.
- Citation
- [1998] KEHC 115 (KLR)
- Parties
- Plaintiff: Agnes Wanjiku Mbugua; Defendant: James Mbugua Macharia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1489 of 1997
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Interlocutory Relief, Married Womens Property, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Wanjiku Mbugua
Plaintiff
James Mbugua Macharia
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has provided sufficient evidence to warrant the grant of an interlocutory injunction restraining the respondent from disposing of or alienating the disputed property pending determination of the suit.
- 2 Whether mere apprehension or belief of possible disposal of property, without supporting evidence, is sufficient to justify an injunction under Order 39 Rule 1(a) of the Civil Procedure Rules.
Ratio Decidendi
The court held that the applicant failed to provide any evidence, beyond her own fears and beliefs, to show that the respondent was likely to dispose of, alienate, or waste the disputed property. The court emphasized that under Order 39 Rule 1(a) of the Civil Procedure Rules, the applicant must demonstrate by affidavit or otherwise that the property is in real danger of being wasted, damaged, or alienated. The applicant's affidavit did not contain any factual basis or supporting evidence for her apprehensions. The court distinguished the present case from Margaret Gitau v Joseph Gitau, where there was some evidence of likely disposal. As the evidentiary threshold was not met, the...
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1489 of 1997
AGNES WANJIKU MBUGUA............................................................................................................PLAINTIFF
VERSUS
JAMES MBUGUA MACHARIA...................................................................................................DEFENDANT
R U L I N G
This is an application by way of Chamber Summons under Order 39 Rule 1(a) of the Civil procedure Rules and section 3A of the Civil procedure act for an injunction to be issued restraining the respondent from disposing off or in any other manner whatsoever wasting and or alienating the movable and immovable property set out pending the determination of these proceedings.
The application is supported by an affidavit sworn by the applicant to which the respondent has sworn a replying affidavit. Both learned counsel have also made their submissions which I have on record.
For the applicant to succeed in obtainng the order sought, it has to be proved by affidavit or otherwise that any property in dipsute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree.
In the instant application the applicant has stated in her affidavit paragraphs 5 and 6 thus:-
“5. The aforesaid properties are registered solely in the name fo the respondent and are exclusively in his possession.
6. That I verily believe that unless restrained by this Honourable court, the respondent will dispose, alienate or waste the aforesaid movable and immovable property with a view to defeating my claim herein.”
The applicant’s substantive suit is by way of Originating Summons grounded on Section 17 of the married Women’s Property Act, (1882). Directions are yet to be taken. It is true that marriage has not been denied. However, the principles of granting injunctions are applicable here like in all other cases seeking the same orders. In the instant case the guide is to be found in order 39 Rule 1(a) which has been cited by the applicant.
As “status quo” is not a rule per se, the applicant is duty bound to provide evidence as required by that provision. In one of the cited cases- H.C.C.C. No. 1246 of 1996 - Margaret Gitau -v- Joseph Gitau, Mbito J. observed that there was some evidence that the assets were likely to be disposed of. He then ordered that the status quo be maintained. In the instant case the applicant has not provided any evidence to that effect and her fears as contained in her affidavit fall short of that.
Accordingly the application must fail. The same is hereby dismissed with costs.
Order accordingly.
Dated and delivered at Nairobi this 20th day of May, 1998
A. MBOGHOLI MSAGHA
JUDGE