[2007] KEHC 1210 (KLR)
The court found that, despite the plaintiff's previous inaction leading to the lapse of the injunction, the interests of justice require that the status quo be maintained to prevent either party from gaining an unfair advantage over the other regarding the disputed property. The double allocation by the City Council...
Source-derived case information.
- Citation
- [2007] KEHC 1210 (KLR)
- Parties
- Plaintiff: Augustine Kimenteria Nthiga; Defendant: David Ndubi Stower
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 933 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Extend Injunction
- Outcome
- Application to extend injunction allowed; costs awarded to respondent.
- Legal Topics
- Double Allocation, Injunctions, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Kimenteria Nthiga
Plaintiff
David Ndubi Stower
Defendant
Procedural Posture
Civil Case / Ruling on Application to Extend Injunction
Legal Issues
- 1 Whether the injunction restraining both parties from dealing with Nairobi Block 63/579 should be extended pending the determination of the main suit.
- 2 Whether the lapse of the previous injunction due to inaction by the plaintiff precludes extension of the orders.
Ratio Decidendi
The court found that, despite the plaintiff's previous inaction leading to the lapse of the injunction, the interests of justice require that the status quo be maintained to prevent either party from gaining an unfair advantage over the other regarding the disputed property. The double allocation by the City Council of Nairobi creates a risk of irreparable harm if either party is allowed to deal with the land before the main suit is resolved. Therefore, the injunction restraining both parties from dealing with Nairobi Block 63/579 is extended until the final determination of the suit. Costs of the application are awarded to the respondent/defendant.
Court Disposition
Application to extend injunction allowed; costs awarded to respondent.
Orders
- The injunction restraining both parties from dealing with Nairobi Block 63/579 is extended until final determination of the main suit.
- Each party is at liberty to apply.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 933 of 2002
AUGUSTINE KIMENTERIA NTHIGA …………........………PLAINTIFF
VERSUS
DAVID NDUBI STOWER …………………...…….………DEFENDANT
RULING
1. Land and Environmental Law Division
2. Subject of main suit: Land
a) Double allocation to plaintiff and defendant separately of Nairobi Block63/579
- 0. 0189 hectares Lease 99 years from 1 January 1968
b) Injunction orders by Waki J 30 July 2003 against both parties
from either constructing any building or structures on No.3 on Nairobi Block 63/579 Jamuhuri Phase II till main suit
c) 90 days given to ensure parties do not go to sleep.
3. The 90 days expired
a) Application to extend the said order (10 May 2005)
b) Opposed by respondent
4. Held:
That the said orders be extended till finalization of the main suit.
5. Case law – Nil
6. Advocates
D. Oyasi for Oyasi & Co. Advocates for the plaintiff/applicant – present
M. Nyangau for Masore Nyangau & Co. Advocates for the defendant/respondent – present
I: Background
1. The main suit herein concerns land. The City Council of Nairobi appears to have double allocated land to both the plaintiff
and defendant being Nairobi Block 63/579 measuring 0. 0189 hectares. It has a lease of 99 years as from 1 January 1968.
2. Waki J issued orders on 30 July 2003 restraining both the plaintiff and defendants respectively from dealing with the suit property. To ensure that parties do not go to sleep this was extended for 90 days only.
3. The plaintiff did go to sleep and the orders have since lapsed. The application before me dated 10 May 2007 seeks extension of those orders.
4. The respondents oppose this.
II: Finding
5. I find that the said orders be extended till the determination of this suit. Each party will be at liberty to apply.
6. I award the costs of this application to the respondent/defendant.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
D. Oyasi for Oyasi & Co. Advocates for the plaintiff/applicant - present
M. Nyangau for Masore Nyangau & Co. Advocates for the defendant/respondent - present