[2004] KEHC 118 (KLR)
The court found that the applicants failed to meet the conditions for the grant of an interlocutory injunction. The evidence presented, including the annexures to the supporting affidavits, did not sufficiently establish ownership or right of use of the suit property by the applicants. Furthermore, the applicants...
Source-derived case information.
- Citation
- [2004] KEHC 118 (KLR)
- Parties
- Plaintiff: Fredrick Muchiru Gicheru & 18 Others; Defendant: Sami Kirika; Defendant: Simon Ngure; Defendant: Bedan Mwangi; Defendant: Patrick Kamau; Defendant: John Ruoya; Defendant: Samuel Kimani; Defendant: Rowland Mburu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 807 of 2004
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Quiet Enjoyment, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Muchiru Gicheru & 18 Others
Plaintiff
Sami Kirika
Defendant
Simon Ngure
Defendant
Bedan Mwangi
Defendant
Patrick Kamau
Defendant
John Ruoya
Defendant
Samuel Kimani
Defendant
Rowland Mburu
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the defendants from interfering with the suit property.
- 2 Whether the applicants have established ownership or right of use over the suit property sufficient to warrant injunctive relief.
- 3 Whether the balance of convenience favors the grant of an injunction.
Ratio Decidendi
The court found that the applicants failed to meet the conditions for the grant of an interlocutory injunction. The evidence presented, including the annexures to the supporting affidavits, did not sufficiently establish ownership or right of use of the suit property by the applicants. Furthermore, the applicants did not demonstrate that the balance of convenience favored the grant of the injunction. As such, the court was not satisfied that equitable relief was warranted and dismissed the application.
Court Disposition
application dismissed
Orders
- The Chamber Summons application dated 22nd July 2004 is dismissed.
- Each party shall bear their own costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 807 of 2004
FREDRICK MUCHIRU GICHERU & 18 OTHERS …..........................................….PLAINTIFFS
-VERSUS-
SAMI KIRIKA…………………….………............................………………1ST DEFENDANT
SIMON NGURE………………………...............................……………….2ND DEFENDANT
BEDAN MWANGI………………………...........................……………….3RD DEFENDANT
PATRICK KAMAU ………………………............................……………..4TH DEFENDANT
JOHN RUOYA ………………………...........................…………………..5TH DEFENDANT
SAMUEL KIMANI…………………….............................…………………6TH DEFENDANT
ROWLAND MBURU…………………...........................………………….7TH DEFENDANT
RULING
On the 26th July, 2004, the Plaintiffs/Applicants filed a Chamber Summons application dated the 22nd July 2004 in which the applicants sought orders to restrain the Defendants/Respondents from interfering in whatever manner with the Applicants’ownership and right of use of the suit property or otherwise interfering with the Applicants quiet enjoyment thereof. The application is supported by the affidavits of the First Plaintiff/Applicant, Fredrick Muchiru Gicheru, respectively made on the 22nd July 2004, the 16th August 2004 and the 22nd October 2004.
At the hearing of the application, Mr. George Kimani for the Applicants argued, in addition to advancing the grounds set out in the application and in the supporting affidavits aforesaid, that the Respondents have not shown any evidence whatsoever of ownership of the suit property – indeed, their claim is the proceedings filed in Naivasha Senior Principal Magistrate’s Court Civil Suit No. 718 of 2004 which is still pending in the lower court is in respect of Plot Numbers 334 and 335, Karati and not Plot Number 934 the subject of this application.
In reply, Mr. P.K. Njuguna for the respondents, and in opposition to the application, dwelt at some length on the Replying Affidavit of the first Defendant/Respondent made and filed on the 13th October 2004. In particular, learned counsel drew the court’s attention to what is deponed to in paragraph 5 and7 of the said affidavit as well as the pleadings in the proceedings of the lower court aforesaid and especially the affidavits therein of pastor Samuel Kirika and Simon Gachie respectively in support of the Chamber Summons application dated the 30th July 2004. Learned counsel stated that the applicant, in paragraph 5 of the further affidavit of the First plaintiff/applicant made on the 22nd October 2004, generally and specifically failed to show that the plaintiffs/applicants acquired the suit premises in their personal capacities as alleged or that they use the same for purposes of an education institute and or nursery school.
Having considered the application in light of these submissions of learned counsel, I am not satisfied that the applicants have met the conditions for the granting of the equitable orders sought. Even on their own evidence as adduced in annexures “FMG 1 and 2” to the Supporting Affidavit of the First Plaintiff/applicant made on the 22nd July 2004, the applicants have been unable, even on the balance of convenience, to fulfill the conditions precedent for the granting of the injunction sought.
In the result, the Chamber Summons application dated the 22nd July 2004 fails and is hereby dismissed. It is ordered accordingly and further that the Applicants and the Respondents shall bear their respective costs of the application.
Dated and delivered at Nairobi this nineteenth day of November 2004.
P.K. Kihara Kariuki
Ag. Judge