[2007] KEHC 1040 (KLR)
The court found that the applicant, as the registered owner of the suit land, had demonstrated urgency and a prima facie case for the grant of interim orders. The respondent, though served, failed to appear or contest the application. The court, upon reading the application and supporting affidavit, was satisfied...
Source-derived case information.
- Citation
- [2007] KEHC 1040 (KLR)
- Parties
- Plaintiff: Ephantus Nyaga Nyaga; Defendant: Ephraim N. Nthambiri
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2006
- Procedural Posture
- Civil Case / Interlocutory Application; Interim Orders Pending Hearing
- Outcome
- Application for interim orders allowed; orders granted as sought pending hearing of the suit.
- Legal Topics
- Interim Injunctions, Ownership Disputes, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Nyaga Nyaga
Plaintiff
Ephraim N. Nthambiri
Defendant
Procedural Posture
Civil Case / Interlocutory Application; Interim Orders Pending Hearing
Legal Issues
- 1 Whether the applicant is entitled to interim orders restraining the respondent from interfering with the suit land pending hearing and determination of the suit.
- 2 Whether the urgency of the matter justifies granting orders ex parte.
Ratio Decidendi
The court found that the applicant, as the registered owner of the suit land, had demonstrated urgency and a prima facie case for the grant of interim orders. The respondent, though served, failed to appear or contest the application. The court, upon reading the application and supporting affidavit, was satisfied that interim orders were necessary to preserve the subject matter of the suit and prevent further acts of interference with the land pending the hearing and determination of the main suit. The application was therefore allowed and the orders sought were granted, with costs in the cause.
Court Disposition
Application for interim orders allowed; orders granted as sought pending hearing of the suit.
Orders
- Interim orders granted restraining the respondent from interfering with the suit land pending hearing and determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 56 of 2006
EPHANTUS NYAGA NYAGA……….....……………PLAINTIFF
VERSUS
EPHRAIM N. NTHAMBIRI…….………………….DEFENDANT
11/12/2006
Patrick for Gatumuta & Co. Advocate for plaintiff present
N/A for Defendants Advocate
ORDER:
Matter fixed for formal proof on 11/7/2007. Defendant Advocate be served.
11/7/2007
Coram: Khaminwa J.
Njue C.C.
Mr. Gatumuta for plaintiff
Application for directions.
(1) Defendant affidavit …… as a statement of defence.
(2) Parties are at liberty to call viva voce evidence.
Matter to be heard in Embu ½ a day.
J. KHAMINWA
JUDGE.
24/7/2007
Khaminwa J.
Njue clerk
Mr. Njue Advocate with certificate of urgency on ground that the Respondent has …………….cutting trees uprooting coffee plants.
See grounds listed and the supporting affidavit. Applicant is registered owner of suit land.
COURT: I certify the matter as urgent.
J. KHAMINWA
JUDGE.
Application to be served for hearing on priority basis for hearing on 26/7/2007.
J. KHAMINWA
JUDGE.
26/7/2007
Coram: Khaminwa J.
Njue C.C.
Mr. Njue : Applicant N/A.
Respondent: I have already served the Respondent and filed Affidavit of service. They are not here now 3. 30 p.m. I ask for interim orders.
RULING:
This matter was certified urgent and direction was given for hearing today. The Respondent is not present in court. Upon reading the application and supporting affidavit I allow the application and grant orders sought.
Pending the hearing of this suit.
Costs in the cause.
J. KHAMINWA
JUDGE.