[2008] KEHC 3503 (KLR)
The court found that the plaintiffs had established a prima facie case that their proprietary rights were being infringed by the defendant, who had no legal authority or claim to the suit property. The defendant, having been previously engaged as a security provider, was acting without instruction from the property...
Source-derived case information.
- Citation
- [2008] KEHC 3503 (KLR)
- Parties
- Plaintiff: Ashish Magon; Plaintiff: Trikuti Investment Ltd; Defendant: Hatari Security Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 93 of 2008
- Procedural Posture
- Civil Suit / Interlocutory Application (chamber Summons) for Injunction
- Outcome
- Application for interlocutory injunction granted.
- Judges
- PM Mwilu
- Legal Topics
- Interlocutory Injunctions, Right of Access, Ownership Disputes, Possession of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ashish Magon
Plaintiff
Trikuti Investment Ltd
Plaintiff
Hatari Security Limited
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (chamber Summons) for Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendant from barring the 1st plaintiff's entry into the suit premises pending determination of the suit.
- 2 Whether the defendant has any legal right or authority to bar the 1st plaintiff from accessing the property.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case that their proprietary rights were being infringed by the defendant, who had no legal authority or claim to the suit property. The defendant, having been previously engaged as a security provider, was acting without instruction from the property owner or its directors in barring the 1st plaintiff's access. The application was unopposed, and the plaintiffs' evidence and submissions were uncontested. The court held that the plaintiffs' right to access and control their property was being breached, and that the circumstances warranted the grant of an interlocutory injunction to restrain the defendant from interfering with...
Court Disposition
Application for interlocutory injunction granted.
Orders
- The defendant and its agents are restrained from barring the 1st plaintiff's entry into the premises known as Muguga Green LR. No. 1870/111/420 pending the hearing and determination of the suit.
- The plaintiffs are awarded the costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL
COURTS)
CIVIL SUIT 93 OF 2008
ASHISH MAGON............................................…………...1ST PLAINTIFF
TRIKUTI INVESTMENT LTD...........................................2ND PLAINTIFF
VERSUS
HATARI SECURITY LIMITED .............................................DEFENDANT
R U L I N G
This Chamber Summons has been brought by the Plaintiffs under order XXXIX Rules 1 & 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. It seeks the following principal orders:-
“The Defendant and its agents be restrained against barring the 1st Plaintiff entry into the premises known as Muguga Green L. R. NO. 1870/111/420 pending the hearing and determination of the instant suit.”
The application is supported by the affidavit of ASHISH MAGON sworn on the 4th March 2008 wherein he depones that he is one of the directors of the 2nd Plaintiff. The application is based on the grounds that the said Ashish Magon is a director and shareholder of Trikuti Investments Ltd who is the registered owner of Muguga Green LR NO. 1870/111/420 and that the Defendant is illegally barring Ashish Magon from entry to the suit premises.
The application was brought under a certificate of urgency and the same was ordered to be served and to be heard inter partes on 2nd April 2008. There is on record an Affidavit of Service dated 01/04/2008 stating that service was effected on the Defendant/Respondent on 10th March 2008.
On the date scheduled for the hearing of the application inter partes only the plaintiff’s counsel appeared in court. The application therefore proceeded unopposed. In the Plaint filed on 22nd February 2008 the 1st Plaintiff claims to be one of two directors of the 2nd Plaintiff herein. The 2nd Plaintiff is said to be the registered proprietor of the suit property. It is further pleaded in the said Plaint that the Defendant be restrained against barring the access of the 1st Plaintiff to the suit land as the 1st plaintiff has an interest of ownership thereof.
The Affidavit in support of the application also states that the 1st plaintiff is a director of the 2nd plaintiff and the suit property is registered in the name of the 2nd Plaintiff. In it the 1st Plaintiff depones that the other director of the 2nd Defendant has assured him on various occasions that she has not instructed the Defendant to bar the 1st Plaintiff from access to the suit property. He depones further that without any authority or colour of right the Defendant has severally barred the 1st plaintiff from accessing the property in issue and that such act is illegal and seeks the orders sought.
The application is not opposed and the averments and submissions remain uncontraverted. In the absence of any answer to the pleadings herein the court is left to consider what is on record on behalf of the plaintiff. The Defendant is said to have been hired by the Plaintiff to guard their premises. They are not said to claim any ownership of the premises. The plaintiff claims to have terminated their services yet they refuse to cease guarding the premises. The suit premises are said to be going to waste as they remain vacant and no rent can be gained therefrom. The Plaintiffs, on the pleadings and submissions before the court have satisfied the court that they have a right that is being breached and which right requires the Court’s protection. The upshot of the above is that the application dated 04/04/08 is successful and the Defendant and its agents are accordingly restrained against barring the 1st plaintiff’s entry into the premises known as Muguga Green LR. No. 1870/111/420 pending the hearing and determination of the suit. The plaintiffs are also awarded the costs of the application.
DATED and DELIVERED in open court in NAIROBI this 17thday of April 2008.
In the presence of
H. Mwendwa for the Applicant.
P. M. MWILU
JUDGE
17. 04. 2008