[2013] KEHC 5674 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of a temporary injunction, as she is the registered owner of the suit land and there are ongoing disputes regarding possession and use. However, the court determined that the issue of whether the land is family property held in trust...
Source-derived case information.
- Citation
- [2013] KEHC 5674 (KLR)
- Parties
- Plaintiff: Bertha Karambu Kirimi; Defendant: Evans Kithinji
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 117 of 2012
- Procedural Posture
- Interlocutory Application / Ruling on Application for Temporary Injunction and Removal of Caution
- Outcome
- Temporary injunction granted; removal of caution denied; costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Temporary Injunctions, Removal of Caution, Ownership Disputes, Family Land Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bertha Karambu Kirimi
Plaintiff
Evans Kithinji
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Temporary Injunction and Removal of Caution
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit land pending determination of the suit.
- 2 Whether the caution registered by the defendant against the suit land should be removed at the interlocutory stage.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of a temporary injunction, as she is the registered owner of the suit land and there are ongoing disputes regarding possession and use. However, the court determined that the issue of whether the land is family property held in trust for the defendant and his family is a substantive matter that should be resolved at the full hearing. Therefore, while the plaintiff is entitled to protection from interference pending the suit, the removal of the caution would be premature before the main issues are determined. The court thus granted the temporary injunction but declined to order the removal of the caution at...
Court Disposition
Temporary injunction granted; removal of caution denied; costs in the cause.
Orders
- A temporary injunction is issued restraining the defendant and his agents from interfering with the plaintiff's possession, use, cultivation, and enjoyment of L.R. No. KIRIMARA/KITHITHINA BLOCK 1/129 pending hearing and determination of the suit.
- The prayer for removal and lifting of the caution lodged by the defendant against the suit land is denied.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ELC CASE NO. 117 OF 2012
BERTHA KARAMBU KIRIMI.................................................................PLAINTIFF
VERSUS
EVANS KITHINJI....................................................................................DEFENDANT
R U L I N G
This application is dated 8th October, 2012 and seeks orders:
THATthe application be certified extremely urgent and it be heard ex-parte in the first instance.
THATpending inter-partes hearing of the application, a temporary injunction be issued restraining the defendant/respondent, his family members, representatives, assigns, employees, servants, agents and/or anybody else claiming or acting for, through or on his behalf, from entering into, trespassing onto, cultivating, utilizing, effecting any form of developments on and/or whatsoever interfering with the plaintiff's/applicant's peaceful quiet, uninterrupted and undisturbed actual possession, user, cultivation and enjoyment of L.R. No. KIRIMARA/KITHITHINA BLOCK 1/129 measuring about 2. 12 hectares.
THATpending hearing and determination of the suit or until further orders of the Court, a temporary injunction be issued restraining the defendant/respondent, his family members, representatives, assigns, employees, servants, agents and/or anybody else claiming or acting for, through or on his behalf, from entering into, trespassing onto, cultivating, utilizing, effecting any form of development on and/whatsoever interfering with the plaintiff's/applicant's peaceful, quiet, uninterrupted and undisturbed actual possession, user, cultivation and enjoyment of L. R. No. KIRIMARA/KITHITHINA BLOCK1/129 measuring about 2. 12 hectares.
THAT pending hearing and determination of the suit or until further orders of the Court, the caution lodged by the defendant/respondent and registered against L. R. No. KIRIMARA/KITHITHINA BLOCK 1/129 on 09. 11. 2011 be removed and lifted.
THAT costs of the application be provided for.
This application was brought to Court by way of a certificate of urgency on 10th October, 2012 and Interim Orders in terms of prayer 1 and 2 were granted by the Hon. Lady Justice J. Lesiit, Judge.
The application was heard Inter Partes on 30. 5.2013. Counsel for the plaintiff stated that he was relying on the various affidavits sworn by his client, other annextures, and on the list of authorities and statutes he had filed.
He claimed that the plaintiff had bought the suit land and the witness statements of a son and a daughter supported her. He also claimed that the defendant had not filed defence in this suit. I find this claim not to be correct as there is a defence in the Court file filed on 20th November, 2012.
Counsel for the plaintiff elaborated on how the plaintiff had satisfied all the requirements for the grant of an injunction as enunciated in the classic case of Giella V. Cassman Brown & Co Ltd [1973] EA 358. He also produced other authorities.
Concerning the lifting of the caution registered against the land by the defendant, he explained that as the registered owner of the suit land, the applicant had absolute right of ownership. He supported the case for removal of the caution by citing apposite Constitutional and Statutory provisions.
The defendant claimed that the suit land was bought by his father who died in 1985 and it was registered in the name of the plaintiff/applicant following the agreement of the family, for her to hold it on their behalf.
I am cognizance that this is an interlocutory application. After examining the affidavits of the parties, I note that there are many conflicting claims which can only be fully ventilated at the hearing of the main suit. At this stage, I only need to look at the relative weight of the arguments of the parties. Care must be taken so that I do not decide on matters which will be determined at the conclusion of the suit.
In the circumstances, I find that the plaintiff has satisfied the Court that she deserves the grant of a temporary injunction pending the hearing and determination of the suit. Regarding the removal and lifting of the caution lodged by the defendant against L. R. No. KIRIMARA/KITHITHINA BLOCK 1/129, I find it necessary that the conflicting claims regarding whether the suit land is family land or not be canvassed at the hearing of the suit.
I, therefore, order:
THATprayer 3 be granted.
THATprayer 4 is denied.
THATcosts be in the cause.
Delivered at Meru in Open Court this 27th day of June, 2013 in the presence of:
Cc. Mwonjaru/Daniel
Miss Waithaka for plaintiff/applicant
Evans Kithinji defendant in person
P. M. NJOROGE
JUDGE