[2014] KEHC 6156 (KLR)
The court found that the applicant had established a prima facie case for the grant of an interlocutory injunction. The absence of statutory notice prior to the intended sale of the suit properties, coupled with the potential for irreparable harm to the applicant's school and students, satisfied the requirements set...
Source-derived case information.
- Citation
- [2014] KEHC 6156 (KLR)
- Parties
- Plaintiff: David Kinyua Bedfored; Defendant: Co-operative Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 106 of 2012
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Injunctions, Statutory Notice Requirements, Land Sale Disputes, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Kinyua Bedfored
Plaintiff
Co-operative Bank of Kenya
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the defendant from selling or interfering with the suit properties pending hearing and determination of the suit.
- 2 Whether the statutory notice was properly issued by the defendant prior to the intended sale.
- 3 Whether the applicant would suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of an interlocutory injunction. The absence of statutory notice prior to the intended sale of the suit properties, coupled with the potential for irreparable harm to the applicant's school and students, satisfied the requirements set out in Giella v Cassman Brown. The respondent's failure to file submissions further strengthened the applicant's position. Consequently, the court allowed the application for an injunction, restraining the defendant from selling or interfering with the suit properties pending further orders.
Court Disposition
application allowed
Orders
- An interlocutory injunction is granted restraining the defendant, its agents, servants, or anyone claiming through them from selling, alienating, or interfering with MUTHAMBI/IGUAMURATHI/849 & 850 pending further orders of the court.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO.106 OF 2012
DAVID KINYUA BEDFORED.......................................................................PLAINTIFF
VERSUS
CO-OPERATIVE BANK OF KENYA........................................................DEFENDANT
RULING
This application is dated 4. 6.2012 and seeks orders:
That court do certify matter urgent and dispense with service.
That court do issue an order of injunction to restrain the respondent or its agents, servants or anybody claiming through them from selling, alienating, or whatsoever interfering with MUTHAMBI/IGUAMURATHI/849 & 850 pending interpartes hearing or until further orders of this court.
That during interpartes hearing court do issue an order of injunction restraining the Respondent, its agents, servants or anybody claiming through them from seling, alienating, or whatsoever interfering with MUTHAMBI/IGUAMURATHI/849 & 850.
That costs be provided for.
The following grounds were proffered by the applicant/plaintiff:
(a) The sale of the subject matter is on 6. 06. 2012 and the Respondent has not issued statutory notice.
(b) The Applicant's school with 120 students and 10 staff members may be sold unlawfully and the pupils and the Applicants will suffer irreparably.
(c) The Applicant has paid Kshs.1. 2 million out of Kshs.1. 5 million balance (sic) and payable in 5 years period.
(d) The account has to be taken (sic).
On 22. 3.2013, the parties by consent, with the approval of the court, elected to argue the application by way of written submissions. On 1. 10. 2013 the plaintiff was directed to file and serve written submissions within 30 days. The respondent was to do so within 30 days after service by the applicant. The plaintiff filed his submissions on 28. 11. 2013. When the matter was mentioned to confirm filing of submissions on 20. 2.2014, it became clear that the respondent had not filed the required submissions. This was 3 months after directions had been given. The applicant moved the court to deliver a ruling.
In his submissions the applicant submits that he has satisfied the principles set out in GIELLA VS CASSMAN BROWN AND ANOTHER (1973) EA 358for grant of an injunction.He submitted that should the orders be vacated, the defendant will sell his land, rendering the suit nugatory. The damage that would ensue, he further submitted cannot be compensated by way of monetary form in that the children learning in his school would not have education facilities.
The respondent did not file submissions. That notwithstanding, I find that the applicant's application has merit. In the circumstances, I allow the application. Costs shall be in the cause.
It is so ordered.
Delivered in open court at Meru this 19th day of March, 2014 in the presence of:
Cc Mwonjaru
Mutunga h/b C. Kariuki for Plaintiff
Mwirigi h/b D. J. Mbaya for Defendant
P. M. NJOROGE
JUDGE