[2007] KEHC 1198 (KLR)
The court found that the probability of success in the main suit is a key determinant for granting an interlocutory injunction. As a precaution, the court granted an injunction restraining dealings with the original suit land, Plot No. 164 Ongata Rongai, until the determination of the main suit. However, the court...
Source-derived case information.
- Citation
- [2007] KEHC 1198 (KLR)
- Parties
- Plaintiff: Gerland W Mahinda; Plaintiff: Gilbert G. Mahinda; Defendant: Nelson Bichange
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1177 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted conditionally.
- Legal Topics
- Injunctions, Land Ownership Disputes, Pending Suits, Probability of Success
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerland W Mahinda
Plaintiff
Gilbert G. Mahinda
Plaintiff
Nelson Bichange
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining dealings with Plot No. 164 Ongata Rongai pending determination of the main suit.
- 2 Whether the probability of success of the suit justifies the grant of an injunction.
- 3 Whether the original plot still exists and the effect on the injunction if it does not.
Ratio Decidendi
The court found that the probability of success in the main suit is a key determinant for granting an interlocutory injunction. As a precaution, the court granted an injunction restraining dealings with the original suit land, Plot No. 164 Ongata Rongai, until the determination of the main suit. However, the court made it clear that if the original plot no longer exists, the injunction would lapse. The advocate for the plaintiffs was tasked with ascertaining the current status of the plot. Costs were ordered to be in the cause.
Court Disposition
Interlocutory injunction granted conditionally.
Orders
- An injunction is issued restraining dealings with Plot No. 164 Ongata Rongai until determination of the main suit, subject to the plot still existing.
- If the original plot no longer exists, the injunction lapses.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1177 of 2005
GERLAND W MAHINDA ………….............………….……1ST PLAINTIF
GILBERT G. MAHINDA …………….......………….…..…2ND PLAINTIFF
VERSUS
NELSON BICHANGE…………..................………….……DEFENDANT
RULING
I: Background of application seeking orders of injunction dated 28. 9.05
1. This suit is controversial. The plaintiff 1 and 2 herein purchased a plot number 164 Ongata Rongai. This I believe must be from the council of the area. I say so as the respondent/defendant had disclosed this to court.
2. The year of purchase of the property was 20 April 1980 from one Bernard P. Roimen now deceased).
3. Parties have heard related suit filed earlier being Hccc1012/92 and Hccc399/93 at one point the latter suit reached the court of Appeal being CA63/93.
4. When the matters came before me for hearing I did ask the advocate for the applicant whether there were any changes that had occurred. This is because two years have since lapsed.
5. The advocate for the applicant informed the court he is not aware what occurred on the ground and gave the impression there was no new development.
6. In reply the advocate for the respondent argued that in effect a lot has occurred. The land had been sub-divided. The head lease has not been signed by other 3rd parties.
7. The parties have other pending suits involving the same subject matter.
II: Application 28. 9.2006.
8. Should an injunction issue herein?
9. The probability of success of this suit is what determines whether a suit should be granted an injunction or not?
10. As abundant precaution I would issue an injunction on condition that the original suit land Plot No.164 Ongata Rongai till determination of the main suit.
11. If per chance this original plot No. 164 is not in existence the orders before court lapses.
12. That advocate for plaintiff/applicant was mandated to find out this information.
13. I award costs to be in the cause.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
Otieno Weda for Odhiabmo & Weda Advocates for the defendant/respondent- present
M.P. Kinyanjui for Machira & Co. Advocates for the plaintiff/applicant - present