[2015] KEHC 3967 (KLR)
The court found that the plaintiff/respondent had not opposed the application as her advocate had lost contact with her. Given the circumstances and the grounds advanced by the applicants, particularly the exclusive collection of rent by the respondent and the status of the 2nd defendant as an innocent purchaser,...
Source-derived case information.
- Citation
- [2015] KEHC 3967 (KLR)
- Parties
- Plaintiff: Fridah Kendi; Defendant: Lawrence Majau Mberia; Defendant: Festus Kathendu; Defendant: Municipal Council of Meru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 104 of 2012
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Variation of Injunction and Rent Deposit
- Outcome
- Application allowed. Prayer 4 granted. Costs awarded to the applicants.
- Judges
- FM Njoroge
- Legal Topics
- Injunctions, Interlocutory Orders, Rent Disputes, Joint Accounts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fridah Kendi
Plaintiff
Lawrence Majau Mberia
Defendant
Festus Kathendu
Defendant
Municipal Council of Meru
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Variation of Injunction and Rent Deposit
Legal Issues
- 1 Whether the ex-parte order of injunction granted on 21.09.2012 should be discharged or varied.
- 2 Whether rent from Plot No. 45 and Plot No. 62 should be deposited in a joint interest-earning account pending determination of the suit.
- 3 Whether the plaintiff/respondent should release all accrued rent collected from the suit premises into a joint account.
Ratio Decidendi
The court found that the plaintiff/respondent had not opposed the application as her advocate had lost contact with her. Given the circumstances and the grounds advanced by the applicants, particularly the exclusive collection of rent by the respondent and the status of the 2nd defendant as an innocent purchaser, the court exercised its discretion to grant the order sought in prayer 4. This required the plaintiff/respondent to release all accrued rent from Plot No. 45 and Plot No. 62, collected since the filing of the suit, to be deposited in a joint interest-earning account in the names of the parties' advocates pending determination of the suit. The court also awarded costs to the...
Court Disposition
Application allowed. Prayer 4 granted. Costs awarded to the applicants.
Orders
- The plaintiff/respondent shall forthwith release all rent accrued, collected, and received from Plot No. 45 and Plot No. 62, Madaraka estate, Makutano area, Meru Township, from the date of filing this suit to-date, and the same shall be deposited in an interest-earning account in a reputable bank, opened in the...
- Costs of the application are awarded to the applicants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO. 104 OF 2012
FRIDAH KENDI ............................................PLAINTIFF /RESPONDENT
VERSUS
LAWRENCE MAJAU MBERIA ............1ST DEFENDANT/APPLICANT
FESTUS KATHENDU ...........................2ND DEFENDANT/APPLICANT
MUNICIPAL COUNCIL OF MERU .............................3RD DEFENDANT
R U L I N G
This application is dated 22nd April, 2015 and seeks orders:-
THAT the application be certified very urgent and it be heard ex-parte in the first instance.
THAT pending inter partes hearing of the application, the ex-parte order of injunction granted and issued herein on 21. 09. 2012, be discharged forthwith.
THAT pending hearing and determination of the application dated 09. 12. 2014 or the suit, the ex-parte Order of injunction granted and issued herein on 21. 09. 12, be varied to the effect that all the rent accruing from the suit premises to wit , Plot No. 45 and Plot No. 62,both situated in Madaraka estate in Makutano area within Meru Township, be deposited in an interest earning account in a reputable bank, opened in the joint names of counsel for the 1st and 2nd defendants/applicants and the Plaintiff /respondent.
THAT pending hearing and determination of the application dated 09. 12. 2014 or the suit, the plaintiff /respondent be ordered to forthwith release all the rent accrued, collected and received from the aforesaid plot No 45 and Plot No.62, both situated in Madaraka estate in Makutano area within Meru township, from the date of filing this suit to-date, and the same be deposited in an interest earning account in a reputable bank, opened in the joint names of counsel for the 1st and 2nd defendants/applicants and the plaintiff/respondent .
That cost of the application be borne by the plaintiff/respondent.
It is supported by the affidavit of Lawrence Majau Mberia and has the following grounds:-
THAT the ex-parte order of injunction granted and issued herein on 21. 09. 12 should be discharged by virtue of Order 40 Rules 6 and 7 of The Civil Procedure Rules,2010.
THAT the 2nd defendant/applicant is an innocent purchaser for plot No. 45 and Plot No.62 both situate in Madaraka estate in Makutano area within Meru Township.
THAT the respondent has been exclusively receiving all the rent from the suit premises.
On 14/05/15 when the application was to be heard interpartes, Mr.Kaimenyi, holding brief for Miss Kiome for the Plaintiff, told the Court that Miss Kiome had lost contact with the Plaintiff. In the circumstances I allow it with the effect that Prayer 4 is granted. Costs are awarded to the applicant.
It is so ordered.
Delivered in Open Court at Meru this 14th day of May, 2015 in the presence of:-
CC: Daniel /Lilian
Carlpeters Mbaabu for Applicant
Kaimenyi holding brief miss Kiome for Plaintiff
P.M. NJOROGE
JUDGE