[2013] KEHC 2340 (KLR)
The court found that the applicant, as the estranged wife of the 1st defendant and mother of the children residing on the suit properties, had demonstrated sufficient grounds for the grant of interlocutory orders. The court was satisfied that the applicant had established a prima facie case, particularly in light of...
Source-derived case information.
- Citation
- [2013] KEHC 2340 (KLR)
- Parties
- Plaintiff: Frida Kendi; Defendant: Lawrence Majau; Defendant: Festus Kathendu; Defendant: Municipal Council of Meru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Ownership Dispute, Matrimonial Property, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frida Kendi
Plaintiff
Lawrence Majau
Defendant
Festus Kathendu
Defendant
Municipal Council of Meru
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the applicant is entitled to an order of inhibition restraining the defendants from transferring or collecting rent from the suit properties pending determination of the suit.
- 2 Whether the applicant has established a prima facie case for the grant of interlocutory injunctive relief.
- 3 Whether the transfer of the suit properties was fraudulent and in contravention of prior court orders.
Ratio Decidendi
The court found that the applicant, as the estranged wife of the 1st defendant and mother of the children residing on the suit properties, had demonstrated sufficient grounds for the grant of interlocutory orders. The court was satisfied that the applicant had established a prima facie case, particularly in light of allegations of fraudulent transfer of the properties in contravention of prior court orders and the risk of irreparable harm to her and her children if the orders were not granted. The court held that the substantive issues regarding ownership and alleged fraud would be determined at the full hearing, but that interim protection was warranted to preserve the status quo and...
Court Disposition
application allowed
Orders
- An order of inhibition is issued restraining the defendants, their agents, servants, or anyone acting on their behalf from transferring, alienating, or collecting rent from plots Madaraka Estate 62 and 45 Meru Municipality until the suit is heard and determined or until further orders of the court.
- An order restraining the 2nd defendant, his agents, servants, or anyone claiming through him from collecting rent, harassing tenants, or interfering with the plaintiff's collection of rent and management of plots Madaraka Estate 62 and 45 until further orders or until the suit is heard and determined.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCC NO. 104 OF 2012
FRIDA KENDI................................................................................................ PLAINTIFF
VERSUS
LAWRENCE MAJAU........................................................................1ST DEFENDANT
FESTUS KATHENDU........................................................................2ND DEFENDANT
MUNICIPAL COUNCIL OF MERU...................................................3RD DEFENDANT
R U L I N G
The application herein is dated 20th September and is premised on the provision of the law mentioned on its face. It seeks Orders: 1, 2, 3, 4, 5 as in the Notice of Motion dated 21. 9.2012. as follows:
That in the 1st instance the court do certify matter urgent and dispense with service.
That court do issue an order of inhibition to stop the Defendants, their agents, servants or anybody acting on their behalf from transferring, alienating or whatsoever including(sic) not to collect rent of plots Madaraka Estate 62 and 45 Meru Municipality until suit herein is heard and determined or until further orders of the court.
That court do issue an order against the 2nd Respondent, his agents, servant or anybody claiming through him to restrain him from collecting rent, harassing tenants or whatsoever interfering with plaintiff(sic) collection of rent and management of plots Mandaraka estate No.62 and 45 until further orders of the court or until suit herein is heard and determined.
That court do make any other order for ends of justice.
That costs be provided for.
It is supported by the following grounds:
(a) The 1st Respondent has transferred fraudulently plots Mandaraka Estate 62 and 45 subjects herein to the 2nd Respondent in collusion with the 3rd Respondent despite court orders herein dated 31. 05. 2012 and served on 6. 6.2012
(b)The 2nd respondent has threatened the tenants in the premises that he will evict them by next week if they failed to pay him rent.
(c)That the Applicant has been paying loan she took in developing the same and she pays Kshs.30,000/= per month from rent herein which amounts to Khs.60,000 per month.
(d) The balance Kshs.30,000 is for the plaintiff's upkeep and the 2 children as 1st defendant abandoned them.
(e) If orders sought are not granted, the applicant and her 2 children will be rendered destitute.
Interim orders were granted by the Hon. Justice J. A. Makau, J. on 21. 9.2012. Prayers 2 and 3 were granted until the suit herein is heard and determined.
The parties, by consent, elected to put in written submissions. They were highlighted on 13. 5.2013. When highlighting her submissions, the applicant re-stated that she was relying on her averments and submissions already filed in Court. She was also relying on the numerous authorities. It was submitted that she was entitled to the prayers she was seeking.
For the respondent, it was submitted that, he was relying on 4 affidavits and multiple documents showing the chronology of events leading to the acquisition of the properties. It was submitted that he had solely been responsible for the acquisition of the properties and that he was a responsible husband who had taken good care of the applicant and their children etc.
The averments of the parties constitute claims and counter claims, almost ad infinitum.But there are at least three facts which are not in dispute. These are:
The applicant is the estranged wife of the respondent.
The respondent is the estranged husband of the applicant.
The applicant is living with children who are issues of the marriage.
Having examined the averments and submissions very carefully, it is clear that many of the issues raised can only be fully ventilated during the hearing and determination of the suit itself. I do note that the advocates for the parties have very vigorously and ably presented the positions of their clients. They have given very good authorities. I, however, find that those authorities, more or less, deal with positions which shall be heard and determined in the main suit.
At this stage, I only need to consider the relative weight of the apposite propositions. It is necessary that the suit be heard as soon as possible. Interlocutory applications will only delay it further which will not be in the interest of the parties and their children. I will give this case a priority hearing date subject to my getting the
cooperation of the parties
I find that the applicant has satisfied me that she deserves the orders she has sought. The application is allowed. Costs will be in the cause.
Dated, Signed and Delivered in Open Court at Meru this 12th day of July 2013 in the presence of:
E. G. Mwangi
Murithi h/b c. Kariuki for plaintiff/applicant
Gatare – Absent for 3rd defendants
P. M. NJOROGE
JUDGE