[2014] KEHC 6770 (KLR)
The court found that the plaintiffs/applicants, by pleading co-ownership and long-term occupation and development of the suit land as matrimonial property, had established sufficient locus standi to seek injunctive relief, notwithstanding the absence of a grant of letters of administration for the deceased 1st...
Source-derived case information.
- Citation
- [2014] KEHC 6770 (KLR)
- Parties
- Plaintiff: Jane Gitiri Njue; Plaintiff: Dorothy Warimba Kariuki; Defendant: Peter Mbogo; Defendant: Njururi Angelo Nyaga
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 777 of 2013
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Applications for Injunction and Discharge of Ex Parte Orders
- Outcome
- Interlocutory injunction granted in favour of the plaintiffs/applicants; 2nd defendant/respondent's application for discharge of injunction dismissed.
- Judges
- BN Olao
- Legal Topics
- Injunctive Relief, Matrimonial Property, Locus Standi, Co Ownership, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Gitiri Njue
Plaintiff
Dorothy Warimba Kariuki
Plaintiff
Peter Mbogo
Defendant
Njururi Angelo Nyaga
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Applications for Injunction and Discharge of Ex Parte Orders
Legal Issues
- 1 Whether the plaintiffs/applicants have locus standi to seek injunctive relief over the suit property.
- 2 Whether the plaintiffs/applicants are entitled to interlocutory injunctive relief restraining the defendants from interfering with the suit property.
- 3 Whether the 2nd defendant/respondent is entitled to discharge of the ex-parte injunctive orders previously granted.
Ratio Decidendi
The court found that the plaintiffs/applicants, by pleading co-ownership and long-term occupation and development of the suit land as matrimonial property, had established sufficient locus standi to seek injunctive relief, notwithstanding the absence of a grant of letters of administration for the deceased 1st defendant's estate. The court held that the issue of co-ownership would be determined at trial, but for purposes of the interlocutory application, their interest was not in doubt. The 2nd defendant/respondent's application to discharge the ex-parte injunction was dismissed for lack of merit, as the evidence (including a letter from the area chief) supported the...
Court Disposition
Interlocutory injunction granted in favour of the plaintiffs/applicants; 2nd defendant/respondent's application for discharge of injunction dismissed.
Orders
- Neither of the parties to this suit shall sell, transfer or in any way interfere with the suit property until this case is heard and finally determined.
- The plaintiffs/applicants shall continue to work on the tea crop on the land.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC CASE NO. 777 OF 2013
JANE GITIRI NJUE ...................................... 1ST PLAINTIFF
DOROTHY WARIMBA KARIUKI ................. 2ND PLAINTIFF
VERSUS
PETER MBOGO ......................................1ST DEFENDANT
NJURURI ANGELO NYAGA ..................... 2ND DEFENDANT
RULING
On 24th October 2013, I granted prayers 1 and 2 of the plaintiffs/applicants Notice of Motion dated the same day seeking injunctive relief restraining the defendants/respondents from entering, evicting, selling, transferring or in any way interfering with land parcel No. NGANDORI/KIRIARI/4329 pending the hearing of the application inter-parte which was set for 6th November 2013.
The said orders were issued after the Court considered the supporting affidavit of the 2nd plaintiff/applicant’s affidavit in which she deponed, inter alia, that the two plaintiffs/applicants are wives of the 1st defendant/respondent (now deceased) and that they have lived on the said land for over fourty (40) years together with their children and the same is their sole source of livelihood yet in April 2013 they discovered that their late husband had sold the land to the 2nd defendant/respondent without involving them.
The 2nd defendant/respondent has now filed a replying affidavit to the plaintiff/applicant’s Notice of Motion in which he depones, inter alia, that the plaintiffs/applicants have not demonstrated that they are wives of the 1st defendant/respondent and therefore have no locus to pursue this matter. Further, the 2nd defendant/respondent adds that he bought the property for value and nobody is residing there including the plaintiffs/applicants. He has annexed to his replying affidavit photographs showing that the land infact has tea bushes.
On his part, the 2nd defendant/respondent also filed his own Notice of Motion seeking the discharge of the ex-parte orders of injunction and in the alternative an order restraining the 1st and 2nd plaintiffs, their servants, children, family members or anybody claiming through them from interfering, trespassing, intruding or in any manner dealing with the said property.
When counsels appeared before me on 25th November 2013, it was agreed that the two applications be canvassed together by way of written submissions. I have considered the applications, the supporting and replying affidavits as well as the submissions of counsels.
The issue of the plaintiffs/applicants locus has arisen. They claim to be the wives of the 1st defendant but have no grant of letters of Administration pendete lite (for the purposes of this litigation). The 2nd defendant/respondent has deponed that they are not bone fide wives of the 1st defendant who is now deceased. It is not clear when the 1st defendant died and if any grant of letters of Administration have been issued in respect to his Estate. In the circumstances, the Court can only conclude that no such grant has been issued. The plaintiffs/applicants have however come to Court not as representatives of their later husband but as co-owners of the property in question. Indeed they claim it is matrimonial property because in paragraph 12 of their plaint they have pleaded as follows:-
“The plaintiffs contend that they have acquired an interest on the said land by virtue of their marriage and the development of the land for more than 40 years hence they are now co-owners.
Given that pleading, their locus is not in doubt but the issue of their co-ownership will await the trial.
The 2nd defendant/respondent seeks the discharge of my earlier orders. I see no basis upon which to do so and that application is dismissed.
Both parties are seeking injunctive reliefs. There is a crop of tea on the land and since the 2nd defendant/respondent only purchased the land in August 2013, he cannot possibly be the owner of that crop. In any case, there is a letter attached to his own affidavit (annexture NAN– 4) which is a letter from the chief of the area showing that the plaintiffs/applicants are the ones who work on that crop. In the circumstances, the orders that commend themselves to make in this case are as follows:-
Neither of the parties to this suit shall sell, transfer or in any way interfere with the suit property until this case is heard and finally determined.
The plaintiffs/applicants shall continue to work on the tea crop on the land
Each party to bear their own costs.
B.N. OLAO
JUDGE
25TH FEBRUARY, 2014
25/2/2014
Coram
B.N. Olao – Judge
CC – Mwangi
Mr. Mogusu for Applicant – present
Respondent – absent
COURT: Ruling delivered this 25th day of February 2014 in open Court.
Mr. Mogusu for plaintiff/applicant present
Mr. Mungai for defendant/respondent absent.
B.N. OLAO
JUDGE
25TH FEBRUARY, 2014