[2023] KEHC 21129 (KLR)
The court found that the applicant failed to controvert the respondents' denial of occupation and destruction of property. The applicant did not provide sufficient evidence to demonstrate that the respondents had evicted or attempted to evict her or destroyed her property. The court applied Order 6 Rule 9(1) of the...
Source-derived case information.
- Citation
- [2023] KEHC 21129 (KLR)
- Parties
- Applicant: Rosemary Gatimbi M’Nchebere; Respondent: Hellen Nthiori Manyara; Respondent: Elias Mutugi Manyara
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E027 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondents; interim orders discharged
- Judges
- TW Cherere
- Legal Topics
- Interlocutory Injunctions, Eviction Disputes, Burden of Proof, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Gatimbi M’Nchebere
Applicant
Hellen Nthiori Manyara
Respondent
Elias Mutugi Manyara
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant demonstrated a prima facie case for grant of an injunction restraining eviction and destruction of property on the suit land.
- 2 Whether the applicant proved that the respondents evicted or attempted to evict her or destroyed her property.
Ratio Decidendi
The court found that the applicant failed to controvert the respondents' denial of occupation and destruction of property. The applicant did not provide sufficient evidence to demonstrate that the respondents had evicted or attempted to evict her or destroyed her property. The court applied Order 6 Rule 9(1) of the Civil Procedure Rules, holding that uncontroverted allegations by the respondents stand admitted. Consequently, the applicant did not meet the threshold for grant of an interlocutory injunction, and the application was dismissed with costs to the respondents. The interim orders previously issued were discharged.
Court Disposition
application dismissed with costs to the respondents; interim orders discharged
Orders
- The summons dated March 14, 2023 is dismissed with costs to the respondents.
- The interim orders issued on March 15, 2023 are discharged.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Stanley Manyara Murithi (Deceased) (Civil Appeal E027 of 2023) [2023] KEHC 21129 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21129 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E027 of 2023
TW Cherere, J
July 27, 2023
Between
Rosemary Gatimbi M’Nchebere
Applicant
and
Hellen Nthiori Manyara
1st Respondent
Elias Mutugi Manyara
2nd Respondent
Ruling
Background 1. By a judgment dated January 25, 2023, the trial court issued the following orders:a.Parcel No. Isiolo/Pesa/9 be and is hereby granted to the Objectorb.¼ portion of LR. Nyaki/Giaki/Nkabune/804 more so being the portion the portion where the objector has settled be given to the objector, the balance thereof shall be divided to the other beneficiaries equallyc.…………d.…………
2. Applicant moved the court asking for injunction to restrain the Respondent from evicting her and destroying her crops on LR. Nyaki/Giaki/Nkabune/804 (suit land). Annexed to the supporting affidavit sworn by applicant on March 14, 2023 are photographs of the destructions alluded to in this application.
3. By her affidavit sworn on April 11, 2023, Hellen Nthiori Manyara (1st respondent) denies that Applicant is in occupation of the suit land or than any of her properties have been destroyed and that the pictures filed by the applicant relate to an old granary that was pulled down.
Analysis and Determination 4. I have considered the application in the light of the affidavits on record and annexures thereto.
5. Respondent has denied that Applicant is in occupation of the suit land or that any of her properties have been destroyed and stated that the pictures filed by the Applicant relate to an old granary that was pulled down. Order 6 Rule 9 (1) of the Civil Procedure Rules which is applicable to these proceedings states that:“Subject to sub-rule (4), any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.”
6. Applicant having not controverted any of the allegations of fact pleaded by the 1st respondent, i find that applicant has failed to demonstrate that respondents have either evicted or attempted to evict her from the suit land or destroyed any of her properties.
7. For the reasons that I have outlined hereinabove, the summons dated March 14, 2023 is found to be unmerited and it is dismissed with costs to the respondents. The interim orders issued on March 15, 2023 are discharged.
DELIVERED IN MERU THIS 27TH DAY OF JULY 2023. WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Mr. KinotiFor Applicant - Mr. Mwirigi for Elijah K. Ogoti & Co. AdvocatesFor Respondents - Mr. Mokua for Mokua Obiria & Associates