[2010] KEHC 2453 (KLR)
The court found that, based on the pleadings and photographic evidence of the plaintiff's church on the suit land, the plaintiff had established a sufficient case to warrant the grant of a temporary injunction. The court declined to make a definitive finding on the capacity of the plaintiff's trustees to sue, as the...
Source-derived case information.
- Citation
- [2010] KEHC 2453 (KLR)
- Parties
- Plaintiff: Geoffrey M. Gitau; Defendant: Stanley W. Kamau; Defendant: Moses Kimani; Defendant: Paul Mundia Murithi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 190 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Temporary injunction granted in favour of the plaintiff pending hearing and determination of the suit.
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Locus Standi, Fraudulent Transfer, Trusteeship Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey M. Gitau
Plaintiff
Stanley W. Kamau
Defendant
Moses Kimani
Defendant
Paul Mundia Murithi
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of a temporary injunction pending trial.
- 2 Whether the plaintiff's trustees have legal capacity to sue given the alleged bar in Nairobi HCCC No. 1236 of 2004.
- 3 Whether the transfer of the suit land to the 1st defendant was fraudulent or valid.
Ratio Decidendi
The court found that, based on the pleadings and photographic evidence of the plaintiff's church on the suit land, the plaintiff had established a sufficient case to warrant the grant of a temporary injunction. The court declined to make a definitive finding on the capacity of the plaintiff's trustees to sue, as the details of the alleged bar were not before it and such issues are best left for determination at trial. The balance of convenience and the need to preserve the status quo pending hearing justified the grant of the injunction. The court therefore restrained the defendants from entering, remaining upon, or interfering with the suit land until the suit is heard and determined.
Court Disposition
Temporary injunction granted in favour of the plaintiff pending hearing and determination of the suit.
Orders
- A temporary injunction is issued restraining the defendants, their servants and/or agents from entering into, remaining upon, or in any other way interfering with or disposing of the suit land until the suit is heard and determined.
- Costs of the application shall be costs in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Civil Case 190 of 2009
GEOFFREY M. GITAU…………………..………..PLAINTIFF
VERSUS
STANLEYW. KAMAU……...………………1ST DEFENDANT
MOSES KIMANI…………………………….2ND DEFENDANT
PAUL MUNDIA MURITHI…………………3RD DEFENDANT
RULING
Both the plaintiff and the 1st defendant are churches carrying out their preaching missions inSouth Kinangopand elsewhere in theRepublicofKenya.The plaintiff claims in its plaint that in 1999 it bought the piece of land known as Title Number Nyandarua/Githioro/1696 (the suit land) from the 2nd defendant and obtained consent for that transaction on 6th October 2005. It thereafter built a temporary church on the land and has been worshiping in it.
In June/July 2009 the plaintiff was shocked to learn that the 1st defendant which is a church of a splinter group of its members had fraudulently transferred to itself the suit land.The plaintiff therefore prays that the register in respect of the suit land be rectified to reflect its name as the owner thereof, a permanent injunction to restrain the defendants by themselves, their servants and/or agents from entering into, remaining upon, building, alienating or in any other way disposing of or interfering with its quiet possession of the suit land, general damages, costs and interest.
Contemporaneous with the filing of the suit the plaintiff filed a chamber summons underSection 63(c) of the Civil Procedure Act and Order 39 Rules 1, 2, 3 & 9 of the Civil Procedure Rulesand sought a temporary injunction to restrain the defendants by themselves, their servants and/or agents from entering into, remaining upon, disposing or in any other way interfering with of the suit land until this suit is heard and determined.
The application is supported by the affidavit of Reverend Joseph Mutheca Gitau, the registered trustee of the plaintiff, in which he has repeated the above averments and stated that the plaintiff is apprehensive that its services on the suit land may be interfered with by the 1st defendant.
In response both in its defence and in the replying affidavit of Moses Kimani Ngaruiya one of the alleged trustees of the defendant the 1st defendant averred that this suit is incompetent and bad in law as the named trustees of the plaintiff having been barred by an order issued in Nairobi HCCC No. 1236 of 2004 from being registered as the trustees of the plaintiff have no capacity to bring this suit.The 1st defendant also denied the plaintiff’s claim and averred that it is the duly registered proprietor of the suit piece of land having bought it from the 2nd defendant on
31st October 2006. It has since been worshiping on it and if anything it is the plaintiff who is trespassing on it.As such it rubbished the consent obtained by the plaintiff as a forgery and null and void for the reason that it was obtained out of time without leave of court.
Mr. Njuguna for the plaintiff submitted that the officials of the 1st defendant got possession of the Title Deeds in respect of the suit land while they were still members of the plaintiff before forming the splinter group after which they got the 2nd defendant to transfer it to the 1st defendant.On his part Mr. Mwaniki for the 2nd defendant also rubbished the consent obtained by the plaintiffs and added that the agreement exhibited by the plaintiff is inadmissible as it is not stamped.
I have considered these rival submissions and read the pleadings in this case.Having not heard evidence I cannot at this stage make any definitive findings on matters in controversy.As the defendant’s allegations that the named officials of the plaintiff and the 1st defendant have no capacity to sue or to be sued are begged on the order allegedly obtained in Nairobi HCCC 1236 of 2004 the exact details of which I do not have, I cannot at this stage determine whether or not the said officials have locus standi in the matter.That will have to be decided by the trial court.
However, from the pleadings and especially the photos of the plaintiff’s church on the suit land which the defendants said nothing about, I am satisfied that the plaintiff has made a case for injunction.Consequently, I grant this application and order that pending the hearing and determination of this suit a temporary injunction is hereby issued to restrain the defendants by themselves, their servants and/or agents from entering into, remaining upon or in any other way interfering with or disposing of the suit land until this suit is heard and determined.The costs of this application shall be costs in cause.
SIGNED, DATED and DELIVERED this 19th day of April March, 2010.
D. K. MARAGA
JUDGE.