[2010] KEHC 3379 (KLR)
The court found that the plaintiff remains in occupation and possession of the suit property, as previously determined by Justice Ouko. The defendants failed to demonstrate any material change in the facts since the earlier injunction was granted. As such, there is no justification to discharge the injunction order....
Source-derived case information.
- Citation
- [2010] KEHC 3379 (KLR)
- Parties
- Plaintiff: Gerald Muthuyia; Defendant: Silas Mwenda Mbui (also as legal representative of Mbui M’Thimbu); Defendant: Henry Kirimi Mbui; Defendant: Edward Maithethia Mbui
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 79 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Discharge Injunction
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Injunctions, Trusts in Land, Possession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gerald Muthuyia
Plaintiff
Silas Mwenda Mbui (also as legal representative of Mbui M’Thimbu)
Defendant
Henry Kirimi Mbui
Defendant
Edward Maithethia Mbui
Defendant
Procedural Posture
Civil Case / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether the injunction restraining the defendants from interfering with the suit property should be discharged.
- 2 Whether there has been a material change in facts since the previous injunction ruling.
- 3 Who is in occupation and possession of the suit property.
Ratio Decidendi
The court found that the plaintiff remains in occupation and possession of the suit property, as previously determined by Justice Ouko. The defendants failed to demonstrate any material change in the facts since the earlier injunction was granted. As such, there is no justification to discharge the injunction order. The application by the defendants is therefore dismissed, and costs are awarded to the plaintiff.
Court Disposition
application dismissed
Orders
- The chamber summons dated 22nd October 2009 is dismissed.
- The defendants shall pay the plaintiff the costs of the application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Civil Case 79 of 2008
GERALD MUTHUYIA ………..…...……………… PLAINTIFF
VERSUS
SILAS MWENDA MBUI (also as legal representative of
MBUI M’THIMBU).......................................1ST DEFENDANT
HENRY KIRIMI MBUI ……......…….....… 2ND DEFENDANT
EDWARD MAITHETHIA MBUI ……....… 3RD DEFENDANT
RULING
The plaintiff has sued the defendant seeking that property NTIMA/NTAKIRA/3190 (the suit property), belongs to him and that the defendant is holding it in trust for him. Further, he seeks the defendant’s name to be canceled and the property to be registered in his name. Simultaneously, when he filed the plaint, he also filed an application dated 12th August 2008 seeking an order for injunction stopping the defendant from deposing the suit property. The court, by its ruling dated 13th November 2008 restrained the defendant as sought. The defendant has now moved to court with a chamber summons dated 22nd October 2009 seeking to discharge the injunction order. The application is based on the grounds that the plaintiff has abused the injunction order by destroying their plants which are on the suit property. They allege in that application that the plaintiff has entered into the whole property and destroyed their houses and cut down trees. The plaintiff has denied that allegation and has deponed that it is the defendant who entered into the land and destroyed his crops. He stated that he has lived on the suit property since he was born and has even buried his deceased son in that land. Justice Ouko, by his ruling of 13th November 2008, stated thus:-
“It is common ground that the applicant is in occupation of the suit land. Prima facie, he has explained how he came in occupation which gives him the right to be there.”
That ruling has not been appealed against. I am therefore bound by its finding. The judge found that it is the plaintiff who is in occupation/possession of the suit property. The defendant have failed to show any material change in the facts of this case since the aforesaid ruling which would justify this court discharging the injunction order. For that reason, the chamber summons dated 22nd October 2009 is dismissed and the defendant shall pay the plaintiff costs of the same.
Dated and delivered at Meru this 12th day of March 2010.
MARY KASANGO
JUDGE