[2008] KEHC 1013 (KLR)
The court found that the applicant is in occupation of the disputed land and that there are unresolved disputes regarding ownership. Applying the principles from Giella v Cassman Brown, the court held that the law favours the party in occupation in such matters. Given the existence of multiple unresolved proceedings...
Source-derived case information.
- Citation
- [2008] KEHC 1013 (KLR)
- Parties
- Plaintiff: Geofrey Mugwana Maina (Suing as the personal representative of Maina Mugwanja); Defendant: Virginia Ngunyi Ngari
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 32 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed. Injunction granted as per prayers 2 and 4 of the application dated 11/3/2008. Costs in the cause.
- Judges
- J Karanja
- Legal Topics
- Injunctions, Land Ownership Disputes, Possession, Preservation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geofrey Mugwana Maina (Suing as the personal representative of Maina Mugwanja)
Plaintiff
Virginia Ngunyi Ngari
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for the grant of an injunction.
- 2 Whether the applicant will suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favours the grant of an injunction.
Ratio Decidendi
The court found that the applicant is in occupation of the disputed land and that there are unresolved disputes regarding ownership. Applying the principles from Giella v Cassman Brown, the court held that the law favours the party in occupation in such matters. Given the existence of multiple unresolved proceedings and the need to preserve the property pending their determination, the court granted the injunction sought by the applicant, allowing prayers 2 and 4 of the application dated 11/3/2008.
Court Disposition
Application allowed. Injunction granted as per prayers 2 and 4 of the application dated 11/3/2008. Costs in the cause.
Orders
- An injunction is granted restraining the defendant from interfering with land parcel No. Mbeere/Mbita/2451 pending determination of the suits.
- A prohibitory order is to be lodged on land parcel No. Mbeere/Mbita/2451.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 32 of 2008
GEOFREY MUGWANA MAINA(Suing as the personal representative of
MAINA MUGWANJA……………………..……………..PLAINTIFF
VERSUS
VIRGINIA NGUNYI NGARI………………………….DEFENDANT
RULING
The applicant has moved the court for orders for injunction against the defendant and also for a prohibitory order to be lodged on land parcel No. Mbeere/Mbita/2451. The application is premised on the 3 grounds on its face and on the supporting affidavits of Geoffrey Mugwanja Maina dated 11/3/2008 and one dated 9/5/2008. It is opposed by the Respondent vide her replying affidavit dated 29/4/2008. The applicant had obtained Ex-parte orders on 12/3/2008 and the same have been in force. The parties were heard inter-partes on 17/9/2008 and this is now the ruling in respect of that application. According to the applicant, the land in question was registered in his late father’s name. Him and his family live on the disputed plot. Both parties have conceded that there have been several proceedings in respect of the said land which do not however appear to have been concluded. They both agree that there are 2 applications for Judicial review where stay orders have been granted. They have not however said why those proceedings have not been concluded. The gist of the matter is that the ownership of the land is contentious and the cases which have been filed to determine the issue of that ownership have not been concluded. It is also noted that the applicant lives on the said plot which is where his late father and his family used to live before he died. The Respondent has not disputed that the applicant is actually in possession of the plot in question. Inorder for orders of injunction to issue, the applicant must prove one of the following:-
(i) That he has a prime facie case with high chances of success;
(ii) That if the injunction is not granted he will stand to suffer irreparable loss which cannot be redressed by way of damages.
(iii) That in case of doubt, the court to decide on a balance of convenience.
Unfortunately, the applicant’s counsel was rather casual in the manner she prosecuted this application. There was not the slightest mention of the above principles which were set out in the celebrated case of Grela –v- Cassman Brown. May be this was so because the party on the other side was unrepresented. This does not nonetheless lessen the need for serious preparedness by counsel in their applications.
Having said so, I wish to point out that, as stated earlier, the respondent is in occupation and has been in occupation of the land in question for some time. The law always favours the party in occupation when dealing with such matters. It is for only that one reason that I will allow this application plus the fact that there are several disputes over the same land and it is important that the land be preserved pending the hearing and determination of those suits.
For the foregoing reasons, I will allow the application dated 11/3/2008 and grant prayers 2 and 4 with costs in the cause.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 29th day of October, 2008.
In presence of;-