[2007] KEHC 1190 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as he did not disclose the full history of the land, including the related succession proceedings and the existence of a caution placed by a purchaser. The plaintiff also failed to demonstrate that he would...
Source-derived case information.
- Citation
- [2007] KEHC 1190 (KLR)
- Parties
- Plaintiff: Eutychus Mwangi Karanja; Defendant: Margaret Wambui Kamau; Defendant: Elias Karanja Mwangi; Defendant: Kariuki Karanja; Defendant: Gathui Karanja; Defendant: Maina Kamau; Defendant: Mwangi Kamau; Defendant: Kaanja Kamau; Defendant: Karanja Mwangi; Defendant: Philisila Wambui Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 291 of 2002
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application for injunction dismissed
- Legal Topics
- Injunctions, Eviction, Land Ownership Disputes, Succession and Trusts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eutychus Mwangi Karanja
Plaintiff
Margaret Wambui Kamau
Defendant
Elias Karanja Mwangi
Defendant
Kariuki Karanja
Defendant
Gathui Karanja
Defendant
Maina Kamau
Defendant
Mwangi Kamau
Defendant
Kaanja Kamau
Defendant
Karanja Mwangi
Defendant
Philisila Wambui Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant an injunction restraining the defendants from occupying or erecting structures on LR Loc.2/Makomboki/1297.
- 2 Whether the plaintiff would suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as he did not disclose the full history of the land, including the related succession proceedings and the existence of a caution placed by a purchaser. The plaintiff also failed to demonstrate that he would suffer irreparable harm if the injunction was not granted, nor did he offer security in the event the orders were wrongly issued. The court noted that the same prayers for injunction were contained in the main suit and that the application was not supported by sufficient evidence. Consequently, the court declined to grant the interlocutory injunction and dismissed the application.
Court Disposition
application for injunction dismissed
Orders
- The application for injunction is dismissed.
- There will be no orders as to costs as the defendants were absent.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 291 of 2002
Land and environmental Law Division
Subject of main suit: Land ownership.
i) LR Loc.2/Makomboki/1297
ii) LR Loc.2/Makomboki/1298
iii) Eviction of 9 defendants from use of LR Loc.2 Makomboki 1297
iv) Erected temporary structure.
3. Application of 14 March 2001.
i) Injunction restrain defendants form erecting any structures until finalization of suit.
ii) Succession Cause 1/77
Muranga Law Courts
Thika Court – CA 10 of 192.
4. Held: Application for injunction dismissed.
5. Case Law
6. Advocate:
A.W. Ngugi for the & Co. Advocates for the applicant
J.N. Ndungu Mwaura & Co. Advocates for the defendant
EUTYCHUS MWANGI KARANJA …….............................………PLAINTIFF
VERSUS
MARGARET WAMBUI KAMAU …............................……..1ST DEFENDANT
ELIAS KARANJA MWANGI ……............................…….. 2ND DEFENDANT
KARIUKI KARANJA ……....……..........................……….. 3RD DEFENDANT
GATHUI KARANJA ………………...........................………4TH DEFENDANT
MAINA KAMAU ………………….........................…………5TH DEFENDANT
MWANGI KAMAU ……………….................................……6TH DEFENDANT
KAANJA KAMAU …………………….........................…….7TH DEFENDANT
KARANJA MWANGI ……………….............................……8TH DEFENDANT
PHILISILA WAMBUI KAMAU …...............................………9th DEFENDANT
RULING
I: Injunction
1. the subject of the main suit herein is land. The applicant/plaintiff filed a plaint herein and prayed for an injunction orders to restrain 9 defendants who are all dependents of one James Kamau Kirithi (now deceased) from interfering with his parcel of land being LR LOC.2 Makomboki/ 1297.
2. According to the plaint the respondents have been allocated Loc.2 Makoboki/1297 together with his land being LOC Makomboki/1298. The suit defendants herein are required to be restrained and trusted for LR Loc 2 to be restrained and evicted from LR LCO.2 Makoboki/1298 and to instead only use their parcel of land.
II: Application 20 March 2007.
3. The application for injunctions states that there was a succession cause No.1 of 1974 at Maragwa Laws courts and the Thika Court suit application No.10/1975 that cause the plaintiff be the registered owner of the suit land in question. The land is 5. 27 ha. The green could show a purchasers interest and caution not permitting transaction of the property.
4. The main suit did not disclose there was a related Succession cause contrary to LN 36/2001 which provided that all related suits concerning parties be grounded.
5. Is there a prima facie case made out with a probability of success?
6. The applicant herein does not disclose in his plaint that this matter originated in 1974. He does not disclose that there is an intended sale of the suit land to the Kenya Development Tea Authority whereby a caution had even placed on 5 April 2004 by a purchaser. He does not disclose that he obtained title on 29 January 2004 thus meaning he may have entered and or negotiations of the land to be sold three months.
7. The information obtained above comes from the annexure of his affidavit being the green card and from the very brief supporting affidavit that is 7 paragraphs in which the plaintiffs states he is the proprietor of the land. That the defendant have refused to move and he wants them vacated and thus the injunction to restrain them from being on the parcel of land.
8. His plaint discloses that all the defendants are children and grand children of Mwangi Karanja the rightful registered owner of Loc.2 Makomboki/1298. The defendants he states were the registered beneficiary of one James Kamau Kariithi who is the now registered owner. I note that he is not party to this suit. The land is held in trust for the defendants by the said James Kamau Kariithu.
9. The plaintiff thereof seeks orders for the defendants to vacate from land belonging to the plaintiffs or Be Forcibly evicted.
II: Finding.
10. I find that there may be no prima facie case made out to have the defendants evicted out of the land. The plaintiffs at this stage has not demonstrated that he would suffer irreparable harm. He has not offered security in the event orders obtained may be wrong.
11. I decline to issue the orders for injunction against the defendants and note that the same prayers are contained in the main suit.
12. I order that the application be dismissed. There will be no orders as to costs as the defendants were absent.
13. This suit be set down for hearing after the plaintiff has served the summons to enter appearance upon all the defendants, the pleading to be closed parties to proceed to conduct a pre-trial conference under their own supervision and there after agree on issues for determination.
Dated this 21 day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
A.W. Ngugi for the & Co. Advocates for the applicant
J.N. Ndungu Mwaura & Co. Advocates for the defendant