[2005] KEHC 1426 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success, particularly given his long-term residence on the suit premises and the claim of trust. The court held that damages would not be an adequate remedy in the circumstances and that the balance of convenience required...
Source-derived case information.
- Citation
- [2005] KEHC 1426 (KLR)
- Parties
- Plaintiff: George Gitau Gauma; Defendant: Augustino Mbai Gatuma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 113 of 2005
- Procedural Posture
- Civil Suit / Interlocutory Application for Injunction
- Outcome
- interlocutory_injunction_granted
- Legal Topics
- Trusts Over Land, Registered Land Act, Injunctive Relief, Possession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gitau Gauma
Plaintiff
Augustino Mbai Gatuma
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of an interlocutory injunction.
- 2 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
- 3 Whether the balance of convenience favors the maintenance of the status quo pending determination of the suit.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success, particularly given his long-term residence on the suit premises and the claim of trust. The court held that damages would not be an adequate remedy in the circumstances and that the balance of convenience required the maintenance of the status quo until the dispute is determined. The court also recognized that a trust can be established over land registered under the Registered Land Act if proved. Accordingly, the court granted the interlocutory injunction sought by the plaintiff, restraining the defendant from interfering with the plaintiff's possession of the suit premises pending the...
Court Disposition
interlocutory_injunction_granted
Orders
- The defendant is restrained from interfering with the plaintiff's possession of the suit premises pending the hearing and determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Suit 113 of 2005
GEORGE GITAU GAUMA…………………………………PLAINTIFF VERSUS AUGUSTINO MBAI GATUMA…………………………DEFENDANT
RULING
The Applicant seeks an injunction to restrain the Defendant from interfering with the Applicant’s possession of the suit premises pending the hearing of this suit.
It is not in dispute that the Defendant is the registered owner of the suit premises but that the Plaintiff has resided on the land since his birth 59 years ago.
Until this suit was filed seeking an order that the Defendant holds the suit premises in trust for the Applicant and himself and named beneficiaries, the Defendant has not objected to the Applicant being there.
Whether this was because it was by way of license or because the Defendant was aware of the trust alleged is a matter for the court at the hearing of this case.
Mrs. Wanjau relied on the cases of Phillicery Nduku Mumo Vs Nzuki Makau C.A No. 56 of 2001andLimuli Vs Marko Sabayi (1976) K.L.R 251 for the proposition that a trust if proved can be in respect of land registered under the Registered Land Act (Cap 300).
In the result the Applicant has a prima facie case with a probability of success and in any event damages would not be an adequate remedy. Further, the convenience of the parties is that the status quo should remain until the matter in dispute is determined.
I therefore make the order sought in prayer 2 of the Chamber Summons of the 2/3/2005.
Costs in the cause.
DATED and DELIVERED at NAIROBI on 16th March 2005.
P.J RANSLEY
JUDGE