[2012] KEHC 3832 (KLR)
The court found that the plaintiffs, having obtained a Limited Grant of Letters of Administration, had the requisite locus standi to bring the application for an injunction to preserve the subject property pending the determination of the suit. The defendants, despite being served and given ample opportunity, failed...
Source-derived case information.
- Citation
- [2012] KEHC 3832 (KLR)
- Parties
- Plaintiff: Eunice Wairimu Muturi; Plaintiff: Washington Muchiri Muturi; Defendant: Ruth Nyambura Chuchu; Defendant: Zipporah Wangui Chuchu; Defendant: Florence Njeri Chuchu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 294 of 2011
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- interim injunction granted; application allowed; costs to plaintiffs
- Judges
- FI Koome
- Legal Topics
- Injunctions, Specific Performance, Sale of Land, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Wairimu Muturi
Plaintiff
Washington Muchiri Muturi
Plaintiff
Ruth Nyambura Chuchu
Defendant
Zipporah Wangui Chuchu
Defendant
Florence Njeri Chuchu
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an interim injunction restraining the defendants from dealing with Land Reference No. 36/111/222 pending determination of the suit.
- 2 Whether the plaintiffs, as administrators of the estate of the late Gerald Muturi Maina, have locus standi to seek enforcement of the sale agreement dated 19th March, 2010.
Ratio Decidendi
The court found that the plaintiffs, having obtained a Limited Grant of Letters of Administration, had the requisite locus standi to bring the application for an injunction to preserve the subject property pending the determination of the suit. The defendants, despite being served and given ample opportunity, failed to file any replying affidavit or submissions in opposition to the application. In the absence of opposition, and upon consideration of the uncontroverted facts and the applicable legal principles, the court granted the interim injunction restraining the defendants from selling, leasing, subdividing, or otherwise dealing with Land Reference No. 36/111/222 until the suit is...
Court Disposition
interim injunction granted; application allowed; costs to plaintiffs
Orders
- An order of injunction restraining the defendants, their agents, servants and/or employees from selling, leasing, subdividing or dealing with Land Reference No. 36/111/222 Nairobi until the determination of the suit.
- This order shall remain in force for a period of one year within which term, the plaintiffs should prosecute the suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
ENVIRONMENTAL & LAND CASE 294 OF 2011
EUNICE WAIRIMU MUTURI
WASHINGTONMUCHIRI MUTURI ……….........……………. PLAINTIFFS
VERSUS
RUTH NYAMBURA CHUCHU
ZIPPORAH WANGUI CHUCHU
FLORENCENJERI CHUCHU …....…..….…………………. DEFENDANTS
RULING
Pursuant to a Limited Grant of Letters of Administration over the estate of the late Gerald Muruti Maina, Eunice Wairimu Muturi and Washington Muchiri Muturi filed this suit against the Defendants. They are seeking inter alia for a permanent order of injunction restraining the Defendants from dealing with Land Parcel No. 36/111/222 in Nairobi. They are also seeking for an order of specific performance compelling the Defendants to complete the sale agreement dated 19th March, 2010.
The Plaintiffs also filed a Notice of Motion under the provisions of Order 40 Rules 1 and 4 of the Civil Procedure Rules. The Applicants are seeking for an interim order of injunction pending the hearing and determination of the suit.
The application is supported by the grounds stated on the body thereto and the matters deposed to in the supporting affidavit.
Briefly stated, the Defendants entered into a sale agreement with the late Gerald Muturi Maina who agreed to purchase Land Reference No. 36/11/222 for Kshs.23,000,000/=. The agreement was dated 19th March, 2010, and the transaction was supposed to be completed within ninety [90] days of the signing of the agreement. Unfortunately, Gerald Muturi died before the transaction was completed but the Plaintiffs indicated to the Defendants their desire to complete the transaction. Indeed, they obtained a Limited Grant of Letters of Administration and issued a completion notice to the Defendants. The Defendants purported to nullify the sale agreement on the grounds that the Defendants had no legal capacity to deal with the estate of the late Solomon Chuchu Watachu before a grant of representative was issued and confirmed. That line of defence is also want the Defendants have pursued in their written statement of defence.
However, the Defendants’ were served with this Notice of Motion but they did not file any replying affidavit (I cannot see any replying affidavit on record).
The Defendants were represented by counsel on 1st July, 2011, when the court gave directions on how the Notice of Motion should proceed to hearing. The Defendants were given time to file their replying affidavits and written submissions. The court further extended time for the Defendants to fully comply with the directions. The Defendants did not comply and did not attend court when the application came up for hearing. As such, the Notice of Motion by the Plaintiff dated 30th June, 2011 is not opposed. In the absence of any opposition, I hereby grant prayer No. 4, that is:
“An order of injunction restraining the Defendants/Respondents jointly or severally, their agents, servants and/or employees from selling, leasing, subdividing or dealing with the plot known as Land Reference No. 36/111/222 Nairobi until the determination of the suit.”
This order shall remain in force for a period of one year within which term, the Plaintiff should prosecute the suit.
The Plaintiff shall have the costs of this application.
Ruling read and signed this 3rd day of February, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 10th November, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity