[2008] KEHC 1818 (KLR)
The court found that both parties had conflicting claims over the land and the 107 blue gum trees situated thereon. Given the risk of irreparable harm and further disputes if either party were to alter the state of the land or cut down the trees before the main suit is determined, the court held that it was just and...
Source-derived case information.
- Citation
- [2008] KEHC 1818 (KLR)
- Parties
- Plaintiff: Charles Mbugua Njuguna; Defendant: Charles Ndungu Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2264 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction; Ruling on Interim Orders
- Outcome
- Interim injunction granted; status quo to be maintained; both parties restrained from cutting down trees pending determination of the suit.
- Legal Topics
- Sale of Land, Specific Performance, Injunctions, Rescission of Contract, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mbugua Njuguna
Plaintiff
Charles Ndungu Kariuki
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction; Ruling on Interim Orders
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from interfering with the suit land pending determination of the main suit.
- 2 Whether both parties should be restrained from cutting down the 107 trees on the land until the suit is determined.
- 3 Whether the status quo should be maintained regarding the use and occupation of the land.
Ratio Decidendi
The court found that both parties had conflicting claims over the land and the 107 blue gum trees situated thereon. Given the risk of irreparable harm and further disputes if either party were to alter the state of the land or cut down the trees before the main suit is determined, the court held that it was just and equitable to preserve the status quo. The court therefore ordered that neither party should cut down any of the 107 trees on the land and that the status quo be maintained until the final determination of the suit. The court also noted that the defendant had been duly served but failed to appear, justifying the ex parte hearing and orders.
Court Disposition
Interim injunction granted; status quo to be maintained; both parties restrained from cutting down trees pending determination of the suit.
Orders
- Status quo to be maintained until determination of the main suit.
- Both plaintiff and defendant are restrained from cutting down any of the 107 trees on the land until the suit is determined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 2264 of 2007
CHARLES MBUGUA NJUGUNA ……………………… PLAINTIFF
VERSUS
CHARLES NDUNGU KARIUKI ………………………. DEFENDANT
RULING
I: Procedure
1. The main suit herein concerns the sale of land (soil) of Land Reference Loc.16 Kiarutara/697 being 5 acres that was originally sub-divided from LR LOC 16 Kiarutara 299.
2. The plaintiff, Charles Mbugua Njuguna had sold the said 5 acres of land to Charles Ndungu Kariuki (the defendant herein) allegedly @ Ksh.200,000/- per acre (soil only). It appears the land contained 107 blue gum trees. This was an investment that was to be sold separately but which the defendant disputes.
3. The defendants admits that a balance of Ksh.246,000/- was owing in the sale agreement but his cheque bounced. He further admits that he replaced this sum which may appear to be denied by the plaintiff.
4. The main disputes between the parties is the areas upon the land. It is alleged that the defendant had no right to this and cut down the same without any right.
5. The plaintiff’s filed suit Hccc7/2004 which was withdrawn. The counter-claim in the said suit was also withdrawn. The plaintiff then filed this present suit in the year 2007.
6. The plaintiff further sought injunction orders to restrain the defendant from interfering with the land. The plaintiff wants to rescind the sale agreement which is his prayer in the main suit.
II: Application 9 November 2007
7. The plaintiff served the defendant who failed to appear for the hearing of his application. The hearing proceeded under Order IX B r 3(a) Civil Procedure Rules whereby the court was satisfied that the defendant had been duly served but was absent.
8. In the application the defendant prays that this land in this matter should not be interfered with till the determination of this suit.
9. I make the following orders being that the “status quo” be maintained till the determination of the main suit. That both the plaintiff and the defendant be and are hereby restrained from cutting down any of the 107 trees that is upon the land till the determination of this suit.
10. The costs will be in the cause.
DATED THIS 11 DAY OF JUNE 2008 AT NAIROBI
M.A. ANG’AWA
JUDGE
R. Mutiso instructed by Mutiso & Co. Advocates for the plaintiff/applicant – present
Kagiri instructed by Kagiri & Associates Advocates for the defendant/Respondent – absent