[2016] KEELC 23 (KLR)
The court found that the application for a temporary injunction was unopposed, as the respondents failed to file any replying affidavit or grounds of opposition despite being served and acknowledging service. In such circumstances, and upon considering the applicant's submissions, the court was satisfied that the...
Source-derived case information.
- Citation
- [2016] KEELC 23 (KLR)
- Parties
- Applicant: Dominic Njeru Nyaga; Applicant: Leonard Kariuki Nyaga; Applicant: Patrick Kithaka Nyaga (Suing as the personal representative of the Estate of Chelestino Nyaga Gichoni); Respondent: The Estate of Karinga Njeru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 70 of 2016
- Procedural Posture
- Environment and Land Case / Interlocutory Application (ruling on Notice of Motion for Temporary Injunction)
- Outcome
- Application for temporary injunction granted as prayed; costs in the cause.
- Judges
- BN Olao
- Legal Topics
- Injunctive Relief, Estate Administration, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Njeru Nyaga
Applicant
Leonard Kariuki Nyaga
Applicant
Patrick Kithaka Nyaga (Suing as the personal representative of the Estate of Chelestino Nyaga Gichoni)
Applicant
The Estate of Karinga Njeru
Respondent
Procedural Posture
Environment and Land Case / Interlocutory Application (ruling on Notice of Motion for Temporary Injunction)
Legal Issues
- 1 Whether the applicants are entitled to a temporary injunction restraining the respondents from evicting them or interfering with their possession of EMBU/MAVURIA/1422 pending determination of the suit.
- 2 Whether the suit property forms part of the Estate of Chelestino Nyaga Gichoni.
Ratio Decidendi
The court found that the application for a temporary injunction was unopposed, as the respondents failed to file any replying affidavit or grounds of opposition despite being served and acknowledging service. In such circumstances, and upon considering the applicant's submissions, the court was satisfied that the applicants had established a prima facie case warranting the grant of a temporary injunction. The court therefore granted the orders as sought in the application, restraining the respondents from evicting the applicants or interfering with their possession of the suit property pending the hearing and determination of the main suit. Costs were ordered to be in the cause, and the...
Court Disposition
Application for temporary injunction granted as prayed; costs in the cause.
Orders
- A temporary injunction is hereby issued restraining the defendant/respondent or their agents or servants from evicting the plaintiff/applicants from the suit premises or otherwise interfering with the plaintiff/applicants' ownership and possession of or in any way adversely dealing with the suit property...
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 70 OF 2016
DOMINIC NJERU NYAGA
LEONARD KARIUKI NYAGA
PATRICK KITHAKA NYAGA (Suing as the
personal representative of the
Estate of CHELESTINO NYAGA GICHONI…………......…APPLICANTS
VERSUS
THE ESTATE OF KARINGA NJERU…………..………RESPONDENTS
RULING
The plaintiff/applicant filed this suit on 9th November 2016 seeking the two main prayers:-
1. A declaration that the land parcel known as EMBU/MAVURIA/1422 forms part of the Estate of CHELESTINO NYAGA deceased.
2. A permanent injunction restraining the defendant or their servants, agents or personal representatives from doing any of the following acts that is to say; claiming ownership and/or title or in any way interfering with applicant’s ownership, occupation, possession and use of the property EMBU/MAVURIA/1422.
Simultaneously with the filing of that suit, the plaintiff/applicant filed a Notice of Motion seeking the following substantive orders:-
(a) Spent.
(b) Spent.
(c) Spent.
(d) That pending the hearing and determination of this suit, the defendant/respondent or their agents or servants or any of them be restrained by a temporary injunction from evicting the plaintiff/applicants from the suit premises or otherwise interfering with the plaintiff/applicants ownership and possession of or in any way adversely dealing with the suit property.
(e) That costs of the application be in the cause.
When the application was placed before me on 22nd November 2016, I directed that it be served upon the defendant/respondents having certified it urgent. It was then listed for inter-parte hearing on 8th December 2016.
On 8th December 2016, counsel for the plaintiff/applicant informed the Court that the same had been served on the advocate for the defendant/respondents but there was no replying affidavit or any grounds of opposition thereto and service had been acknowledged.
Upon hearing the counsel for the plaintiff/applicant on the Notice of Motion dated 7th November 2016 and filed herein on 9th November 2016 and as there is no replying affidavit or any grounds of opposition filed in response thereto, I grant the orders as sought in paragraph (d) of the said Notice of Motion with costs being in the cause. The plaintiff to comply with other pre-trial directions and have the suit listed for hearing and determination in the next twelve (12) months.
It is so ordered.
B.N. OLAO
JUDGE
8TH DECEMBER, 2016
Ruling dated, delivered and signed in open Court this 8th day of December 2016.
Mr. Muriuki for Plaintiff/Applicant present.
B.N. OLAO
JUDGE
8TH DECEMBER, 2016