[2011] KEHC 107 (KLR)
The applicant established a prima facie case by producing a title deed in his name and providing unrebutted evidence of the respondents' entry and construction on the suit property. The respondents failed to attend or file any response, leaving the applicant's assertions unchallenged. The court found that the...
Source-derived case information.
- Citation
- [2011] KEHC 107 (KLR)
- Parties
- Applicant: Isaac Mwangi Kimundu; Respondent: Mucheru Njoroge; Respondent: Susan Wairimu Njagi; Respondent: John Mutune Kihara
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 35 of 2011
- Procedural Posture
- Civil Suit / Interlocutory Injunction Application Ruling
- Outcome
- Interlocutory injunction granted with modification.
- Judges
- SP Ouko
- Legal Topics
- Injunctions, Trespass, Ownership Disputes, Land Title, Interlocutory Relief
- 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
Isaac Mwangi Kimundu
Applicant
Mucheru Njoroge
Respondent
Susan Wairimu Njagi
Respondent
John Mutune Kihara
Respondent
Procedural Posture
Civil Suit / Interlocutory Injunction Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondents from interfering with the suit property pending hearing and determination of the suit.
- 2 Whether the respondents have any legal right to enter, construct on, or otherwise interfere with the applicant's land.
Ratio Decidendi
The applicant established a prima facie case by producing a title deed in his name and providing unrebutted evidence of the respondents' entry and construction on the suit property. The respondents failed to attend or file any response, leaving the applicant's assertions unchallenged. The court found that the applicant was entitled to protection of his proprietary rights by way of an interlocutory injunction. However, the court modified the terms of the injunction to restrain the respondents from further construction or interference, rather than granting an order that would amount to eviction before trial. The balance of convenience and the absence of rebuttal evidence justified the grant...
Court Disposition
Interlocutory injunction granted with modification.
Orders
- The respondents, their servants, agents and/or employees are restrained from constructing or interfering with the suit property, NYANDARUA/MURUAI/982, in any manner pending the hearing of the suit.
- Costs to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MULTI-TRACK CIVIL SUIT NO.35 OF 2011
ISAAC MWANGI KIMUNDU………...........……………APPLICANT/PLAINTIFF
VERSUS
MUCHERU NJOROGE……………........……..1ST RESPONDENT/DEFENDANT
SUSAN WAIRIMU NJAGI………...........………2ND RESPONDENT/DEFENDANT
JOHN MUTUNE KIHARA…………..........………3RD RESPONDENT/DEFENDANT
RULING
The applicant has brought the motion dated 7th March, 2011 claiming that the respondents have entered upon his land known as NYANDARUA/MURUAI/982 without any colour of right and have commenced construction thereon. The applicant therefore seeks that the respondents be restrained by an order of injunction from:
“…… constructing, entering, remaining, occupying and/or in any other manner trespassing upon and/or interfering with the plaintiff’s peaceful occupation and possession of parcel of land NYANDARUA/MURUAI/98………………....”
The respondents were duly served with this application as well as a hearing notice. However, on the date the matter was set down to be heard, none of them attended. Neither have they replied to the application.
The applicant has exhibited a title deed for the suit property which is in his name. He has averred without being rebutted that the respondents have invaded his property; that they have no right to do so; that they have constructed structures on the property and are in the process of developing a cattle dip. He has annexed photographs of these developments.
Without evidence in rebuttal, prima facie the applicant has shown that he deserved the order of injunction pending the hearing of the suit. However, the order cannot be granted in the manner framed as doing so would amount to evicting the respondents at this stage before the trial. The prayers sought are granted subject to the following modification:
That the respondents, their servants, agents and/or employees are restrained from constructing or interfering with the suit property, (NYANDARUA/MURUAI/982), in any manner pending the hearing of the suit.
Costs to the applicant.
Date, Signed and Delivered at Nakuru this 28th day of November, 2011.
W. OUKO
JUDGE