[1997] KECA 233 (KLR)
The Court of Appeal found that although the applicant's claim is based on trust and the parties are husband and wife, it would not be just to completely inhibit the respondent from exercising his proprietary rights as the registered owner of the properties. However, to afford the applicant a measure of protection...
Source-derived case information.
- Citation
- [1997] KECA 233 (KLR)
- Parties
- Applicant: Alice Karuru Kithinji; Respondent: Gideon Kithinji Limberia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 85 of 1997
- Procedural Posture
- Civil Application / Application for Inhibition and Restriction Pending Appeal
- Outcome
- Application partially allowed.
- Judges
- JE Gicheru, RO Kwach, GS Pall
- Legal Topics
- Matrimonial Property, Trusts in Land, Injunctive Relief, Pending Appeal Protection
- 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
Alice Karuru Kithinji
Applicant
Gideon Kithinji Limberia
Respondent
Procedural Posture
Civil Application / Application for Inhibition and Restriction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an inhibition order and caveat over the respondent's properties pending appeal.
- 2 Whether the court should balance the proprietary rights of the respondent with the applicant's claim based on trust as a spouse.
Ratio Decidendi
The Court of Appeal found that although the applicant's claim is based on trust and the parties are husband and wife, it would not be just to completely inhibit the respondent from exercising his proprietary rights as the registered owner of the properties. However, to afford the applicant a measure of protection pending the appeal, the court exercised its discretion to grant an inhibition order over one commercial property (L.R. NO. NTIMA/IGOKI/513) only, rather than all 11 properties sought. This order preserves the subject matter of the appeal to the extent necessary to avoid rendering the appeal nugatory, while also respecting the respondent's rights as owner. The costs of the...
Court Disposition
Application partially allowed.
Orders
- An order of inhibition is granted over L.R. NO. NTIMA/IGOKI/513 in terms of prayer (1) in the Notice of Motion until the hearing and final determination of the intended appeal or further order.
- Costs of the application to be in the intended appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: GICHERU, KWACH & PALL, JJ.A.)
CIVIL APPLICATION NO. NAI. 85 OF 1997
BETWEEN
ALICE KARURU KITHINJI ................................ APPLICANT
AND
GIDEON KITHINJI LIMBERIA ............................. RESPONDENT
(Application for inhibition and restriction /caveat, pending appeal against the ruling and orders of the High Court of Kenya at Meru (Justice Etyang) dated 12th March, 1997 in
H.C.C.C. NO. 2 OF 1997)
******************
RULING OF THE COURT
This is an application under rule 5(2)(b) of the Court of Appeal Rules for an inhibition order and caveats over 11 properties owned by the respondent pending the hearing and final determination of an appeal by the applicant (a wife) against her husband, the respondent, in this application. The applicant sought the same order in the superior court but her application was unsuccessful. Although the cause of action is based on trust the claim may well succeed as the parties are husband and wife. In order not to inhibit the respondent from exercising his proprietary right as registered owner completely, and also to give the wife a measure of protection, we allow the application and grant an order of inhibition over the commercial property L.R. NO. NTIMA/IGOKI/513 in terms of prayer (1) in the Notice of Motion until the hearing and final determination of the intended appeal or further order.
Costs of the application to be in the intended appeal.
Dated and delivered at Nyeri this 15th day of May, 1997.
J.E. GICHERU
................
JUDGE OF APPEAL
R.O. KWACH
................
JUDGE OF APPEAL
G.S. PALL
....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR