[2014] KEHC 5809 (KLR)
The court found that the real issues in the plaint, including allegations of fraud and misappropriation of funds, could only be properly determined at a full hearing. To ensure that the suit properties are preserved and the applicant's interests protected pending the hearing, the court held that the balance of...
Source-derived case information.
- Citation
- [2014] KEHC 5809 (KLR)
- Parties
- Plaintiff: Hauser Patrick George; Defendant: Isaac Njuguna Njoroge
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 172 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Judges
- SN Mukunya
- Legal Topics
- Interlocutory Injunctions, Protection of Suit Property, Limitation of Actions, Fraud Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hauser Patrick George
Plaintiff
Isaac Njuguna Njoroge
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from dealing with the suit properties pending hearing and determination of the suit.
- 2 Whether the suit is barred by the Limitation of Actions Act or is otherwise a non-starter.
- 3 Whether the applicant must provide an undertaking as to damages for the grant of injunction.
Ratio Decidendi
The court found that the real issues in the plaint, including allegations of fraud and misappropriation of funds, could only be properly determined at a full hearing. To ensure that the suit properties are preserved and the applicant's interests protected pending the hearing, the court held that the balance of convenience favored granting an interlocutory injunction. The court further required the applicant to provide an undertaking as to damages equivalent to the value of the properties, as a condition for the injunction. The respondent's preliminary objections regarding limitation and the nature of the remedy were previously dismissed and did not bar the grant of the injunction at this...
Court Disposition
interlocutory injunction granted
Orders
- The motion dated 23rd July, 2011 is allowed in terms of prayer no. 3.
- The applicant shall give an undertaking as to damages to the extent of Kshs. 1.4 million.
Full Case Text
Judgment text and source record
22 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 172 OF 2011
HAUSER PATRICK GEORGE ................................................ PLAINTIFF
- VERSUS-
ISAAC NJUGUNA NJOROGE ................................................. DEFENDANT
RULING
[1] The applicant filed a notice of motion dated 23rd June 2011. His main prayer is that the respondent be restrained by himself, his agents, employees or anybody acting under him from selling, transferring, charging or developing or in any manner dealing with all these properties set out in the said motion. He supported his application with his affidavit sworn on 23rd June, 2011 whose averments are self explanatory.
[2] The respondent filed a replying affidavit sworn on 15th July, 2011 basically denying the averments contained in the notice of motion aforesaid but admitting having received Kshs. 600,000 and claiming that he bought two portions of an acre for the applicant. His averment in the said affidavit are also self explanatory. The respondents attempted to attack the suit on the ground that it was a non starter and that it is caught up by limitation of Actions Act and further that the claim can only lie for accounts and a refund of money unaccounted for and unutilized and not for restraining orders or injunction or declaration. Those objections were dismissed by Kasango J in her ruling of 25th May, 2012. I have also read the plaintiffs written submissions and the annextures therein. I have equally read and considered the defendant/respondent written submissions.
[3] I am convinced that for the real issues in the plaint to be determined this suit must proceed to full hearing and the averments of the parties herein as set in their various lengthy affidavits be tested on cross-examination. This calls for the suit properties herein to be protected pending the hearing on such issues of fraud and misappropriation of funds as have been alleged. The balance of convenience is in favour of granting an injunction as prayed to protect the suit properties. The applicant shall give an undertaking as to damages to the extent of the figure he says the properties cost Ksh. 65,000 francs then exchanging at Kshs. 24 bringing a total of Kshs. 1. 4 million the net result is that;
1. The motion dated 23rd July, 2011 is allowed in terms of prayer no. 3.
2. The applicant shall give an undertaking as to damages to the extent of Kshs. 1. 4. million.
3. The costs of this application shall follow the event at the determination of this suit.
Dated and delivered in open court at Mombasa this 24th day of March, 2014.
S. MUKUNYA
JUDGE
24. 3.2014
In the presence of:
Mr. Wameyo Advocate for the applicant
Mr. Akanga Advocate for the respondent