[2009] KEHC 574 (KLR)
The court found that the applicant failed to demonstrate a prima facie case as required for the grant of a temporary injunction. The applicant merely alleged that the property was matrimonial property without providing any evidence or explanation as to how it became so. Furthermore, the property in question was...
Source-derived case information.
- Citation
- [2009] KEHC 574 (KLR)
- Parties
- Plaintiff: Irene Wanjiru Gichinga; Defendant: James Njoroge Gichinga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 30 of 2009
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons for Injunction and Substituted Service
- Outcome
- application dismissed
- Legal Topics
- Matrimonial Property, Injunctive Relief, Substituted Service, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Wanjiru Gichinga
Plaintiff
James Njoroge Gichinga
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons for Injunction and Substituted Service
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from dealing with L.R. No. 209/15270 pending determination of the originating summons.
- 2 Whether the applicant has demonstrated that the property is matrimonial property and established a prima facie case for injunction.
- 3 Whether the court should grant leave for substituted service of the originating summons out of jurisdiction.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case as required for the grant of a temporary injunction. The applicant merely alleged that the property was matrimonial property without providing any evidence or explanation as to how it became so. Furthermore, the property in question was registered in the name of a company, SOLEDO DEVELOPMENT COMPANY LIMITED, and no information was provided regarding the ownership or shareholding of the company. As such, the applicant did not meet the threshold for injunctive relief. Regarding substituted service, the court held that a separate application must be made in the relevant Divorce Cause, not in the present suit....
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicant will bear her own costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Civil Suit 30 of 2009
IRENE WANJIRU GICHINGA……………………………….. PLAINTIFF
V E R S U S
JAMES NJOROGE GICHINGA……………………………. DEFENDANT
R U L I N G
This is a Chamber Summons dated 31st July, 2009 filed by M/s Mwenda Kinyua & Company advocates for the applicant named as IRENE WANJIRU GICHINGA. It seeks 6 orders, two of which have been spent as follows-
1. (spent).
2. (spent).
3. A temporary injunction do issue restraining the
Respondent, his servants and/or agents from wasting, damaging or alienation, selling and or interfering with the property L.R. No. 209/15270 pending the hearing and determination of the originating summons.
4. Leave be granted for service of the Originating
Summons out of jurisdiction.
5. Service of the Originating Summons be by
Advertisement in a daily newspaper of wide circulation in Kenya and United States of America, or as the court may direct.
6. Costs of this application be borne by the respondent.
There are grounds on the face of the Chamber Summons. The application is also supported by an affidavit sworn by the applicant on 31st July, 2009. It is evident from the affidavit that the applicant herself is a resident of the United States of America, that is 7 Dickerson Lane Old Bridge New Jersey 0885745.
Having considered the application, documents filed, the applicant, I will not grant the restraining and injunctive orders sought. Though the applicant claims that the property is matrimonial property, no description or explanation has been given in the documents filed to show or demonstrate how it became matrimonial property. There appears to be only an allegation that the property is matrimonial property. The documents filed in fact indicate that the subject property is in the name of a company called SOLEDO DEVELOPMENT COMPANY LIMITED. No explanation as to the ownership or shareholding of the Company has been given. In my view, the applicant has not satisfied the first requirement under the case of GEILLA –VS- CASSMAN BROWN [1973] E.A. 358 – has not demonstrated a prima facie case. On that ground I will not grant prayer 3.
On the prayers for substituted service, in my view a separate application has to be made based on the provisions for substituted service abroad. And that application has to be made in the Divorce Cause that has already been filed. The applicant is therefore at liberty to make a fresh application for substituted service as deemed necessary.
Consequently, and for the above reasons, I dismiss the application. The applicant will bear her own costs of the application.
Dated and delivered at Nairobi this 26th day November, 2009.
George Dulu
Judge.