[2015] KEHC 2554 (KLR)
The court found that the respondent was entitled to an adjournment since he was only served with the application two days prior and had not had an opportunity to file a replying affidavit or engage counsel. The application for interim injunction could not be determined in the absence of the respondent's response....
Source-derived case information.
- Citation
- [2015] KEHC 2554 (KLR)
- Parties
- Applicant: Esther Wangechi Njue; Respondent: George Wanjau Samuel
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 231 of 2015
- Procedural Posture
- Succession Cause / Interlocutory Application for Adjournment and Interim Injunction
- Outcome
- adjournment granted; interim injunction application deferred
- Legal Topics
- Succession Proceedings, Interim Injunctions, Adjournment, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wangechi Njue
Applicant
George Wanjau Samuel
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Adjournment and Interim Injunction
Legal Issues
- 1 Whether the respondent should be granted an adjournment to engage an advocate and respond to the application.
- 2 Whether an interim injunction should be granted to restrain the respondent from encroaching on the disputed suit land pending hearing.
Ratio Decidendi
The court found that the respondent was entitled to an adjournment since he was only served with the application two days prior and had not had an opportunity to file a replying affidavit or engage counsel. The application for interim injunction could not be determined in the absence of the respondent's response. The court therefore granted a seven-day adjournment to allow the respondent to engage an advocate and respond to the application, and deferred any ruling on the interim injunction until after the respondent's response.
Court Disposition
adjournment granted; interim injunction application deferred
Orders
- The respondent is granted an adjournment of seven days to enable him to engage an advocate and respond to the application.
- No ruling is made on the application for interim injunction until the respondent has responded.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 231 OF 2015
IN THE MATTER OF THE ESTATE OF ELVIS SAMUEL NJUE (DECEASED)
ESTHER WANGECHI NJUE..............................................PETITIONER
VERSUS
GEORGE WANJAU SAMUEL........................................RESPONDENT
RULING
This application was brought under certificate of urgency and was certified to be urgent. The respondent George Wanjau Samuel appeared in person informed the court that he was served on 25th August, 2015 with this application. He therefore applied for an adjournment for seven days to enable him engage an advocate. Mr Gaturu for the petitioner does not oppose the application for adjournment.
However, he has applied that he be granted interim injunction to stop the respondent from encroaching on the disputed suit land.
The respondent asserts that the suit land belongs to his late father and has opposed the grant of a temporary injunction. He did so not withstanding that he has not filed a replying affidavit in view of the late service of this application upon him which was only done on 25th August, 2015.
I have considered all these matters and I have come to the conclusion that the respondent is entitled to the adjournment that he has sought, which is not opposed.
In the light of the fact that the respondent has not filed any replying affidavit due to the late service upon him of the application on 25th August, 2015, the court has not had the benefit of the respondent's replying affidavit in order to substantively address the issue of a temporary injunction. It also lacks the same benefit in regard to the application for protection of the petitioner by the police.
In the circumstances, I grant the respondent the adjournment for seven (7) days to enable him engage an advocate and to respond to the application. And for this reason, I am unable to make any ruling concerning the application for the temporary injunction until the respondent has responded to the application.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this..27th day of AUGUST, 2015
In the presence of the Mr Gaturu for petitioner and in the presence of the respondent
Court clerk Susan Karimi
J.M. BWONWONGA
JUDGE
27. 08. 15