[2010] KEHC 2930 (KLR)
The court found that the plaintiff failed to demonstrate a prima facie case with a probability of success, as she had not obtained a grant of letters of administration and thus had not established her capacity to sue. Furthermore, the plaintiff did not provide particulars of fraud as required by law, nor did she...
Source-derived case information.
- Citation
- [2010] KEHC 2930 (KLR)
- Parties
- Plaintiff: Anna Ruguru Njomo; Defendant: Peter Kangara Karanja; Defendant: Kimani Kimuhu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 82 of 2010
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Application for Interlocutory Injunction
- Outcome
- application for interlocutory injunction dismissed
- Legal Topics
- Registered Land Title, Injunctive Relief, Succession Disputes, Fraud Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Ruguru Njomo
Plaintiff
Peter Kangara Karanja
Defendant
Kimani Kimuhu
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Application for Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction against the defendants.
- 2 Whether the plaintiff has legal capacity to sue in respect of the disputed land.
- 3 Whether the plaintiff has sufficiently pleaded and particularized fraud as required by law.
Ratio Decidendi
The court found that the plaintiff failed to demonstrate a prima facie case with a probability of success, as she had not obtained a grant of letters of administration and thus had not established her capacity to sue. Furthermore, the plaintiff did not provide particulars of fraud as required by law, nor did she allege that the defendants had trespassed or lacked interest in the land. The court held that the defendants, as registered proprietors, have an absolute and indefeasible claim to the land, and the balance of convenience favored them. Consequently, the plaintiff was not entitled to an interlocutory injunction.
Court Disposition
application for interlocutory injunction dismissed
Orders
- The application for interlocutory injunction is dismissed.
- Costs to the defendants.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Environmental & Land Case 82 of 2010
ANNA RUGURU NJOMO ……………………………………PLAINTIFF
V E R S U S
PETER KANGARA KARANJA ……………………….1ST DEFENDANT
KIMANI KIMUHU …………………………………..2ND DEFENDANT
R U L I N G
The land in dispute that is LR. No. NDUMBERI/RIARA/814, now belongs to the Defendants as registered proprietors.Such registration would give them a prima facie absolute and indefeasible claim to the land, and it is unusual to injunct such an owner of land as it is a necessary incident of ownership to have full and exclusive possession.(See CHERUIYOT –VS- BARTIONY [1988] KLR 422).
The Plaintiff alleges the land belonged to her late mother MARGARET WARUTHU NJOROGE.She died on 29th March, 2009. On 20th November, 2009 the Plaintiff filed succession proceedings at Kiambu Court to succeed her.The proceedings are pending.When she went to the lands registry at Kiambu she found that the Defendants had since become the registered owners, yet they had not filed any other succession proceedings.The suit was brought to cancel the registration.The Defendants are children of the Plaintiff’s late brother.Her fear is that the Defendants may dispose of the land.The injunction application was brought to restrain the Defendants from entering, trespassing, transferring or in any other way dealing with the land until the suit is heard and finalized.Fraud was alleged against the Defendants, but there were no particulars as is required by Order 6 rule 8(1) (a) of the Civil Procedure Rules.
The Plaintiff is daughter of the deceased and has gone to court to succeed her.The deceased owned the land.The Plaintiff is not saying she has obtained grant of letters of administration.Her capacity to sue has not been disclosed. Further, she is not saying in the plaint or supporting affidavit that the Defendants have trespassed on the land, or that they have no interest in the land.
In short, the Plaintiff has not demonstrated a prima facie case with a probability of success to be able to merit an interlocutory injunction.(See GIELLA –VS- CASSMAN BROWN & CO. LTD [1973] EA 358).There was no effort to demonstrate that if the injunction is not granted she will suffer injury which damages may not compensate.The balance of convenience must tilt in favour of the Defendants who are the registered proprietors.
DATED AND DELIVERED AT NAIROBI
THIS 12TH DAY OF MARCH 2010
A.O. MUCHELULE
J U D G E