[2010] KEHC 32 (KLR)
The court found that the applicant sought a permanent, not temporary, injunction at an interlocutory stage, which is procedurally improper. The applicant's evidence was based on unsubstantiated information, with no disclosure of sources or supporting exhibits to demonstrate the respondent's alleged actions....
Source-derived case information.
- Citation
- [2010] KEHC 32 (KLR)
- Parties
- Plaintiff: Joel Mwangi Kamau; Defendant: James Mwangi Nganga t/a Kianjau Investments
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 539 of 2010
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Injunctive Relief, Prima Facie Case, Irreparable Harm, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Mwangi Kamau
Plaintiff
James Mwangi Nganga t/a Kianjau Investments
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of an injunction restraining the respondent from dealing with the suit property.
- 2 Whether the applicant has demonstrated irreparable harm that cannot be compensated by damages.
- 3 Whether the order sought is appropriate at the interlocutory stage.
Ratio Decidendi
The court found that the applicant sought a permanent, not temporary, injunction at an interlocutory stage, which is procedurally improper. The applicant's evidence was based on unsubstantiated information, with no disclosure of sources or supporting exhibits to demonstrate the respondent's alleged actions. Consequently, the applicant failed to establish a prima facie case with a probability of success or any imminent breach of rights. The court held that the threshold for granting an interlocutory injunction as set out in Giella vs Cassman Brown was not met. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The chamber summons dated 11th November, 2010 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.539 OF 2010
JOEL MWANGI KAMAU……...……….PLAINTIFF/APPLICANT
VERSUS
JAMES MWANGI NGANGA T/A
KIANJAU INVESTMENT……….....DEFENDANT/RESPONDENT
R U L I N G
1. Joel Mwangi Kamau (hereinafter referred to as the applicant), seeks an order of injunction restraining James Mwangi Nganga t/a Kianjau Investments (hereinafter referred to as the respondent), his agents and or servants from trespassing, selling or offering for sale and or in any other way dealing with the plaintiff’s Land Parcel No.4953/2191 situated in Thika Municipality within Thika District (hereinafter referred to as the suit property), and that the officer in charge Thika Police Station be ordered to enforce compliance.
2. The application is anchored on the ground that the applicant is the grantee from theGovernment of Kenya of the suit property. On diverse dates the respondent illegally entered the suit property. The applicant has now learnt that the respondent is illegally offering the suit property for sale to innocent 3rd parties misleading them that he is the bona fide owner of the suit property. The applicant therefore fears that unless an order of injunction is issued the respondent may cause the applicant to suffer irreparable loss and damage.
3. The respondent objects to the application through grounds of opposition dated 6th December, 2010. The respondent contends inter alia that the application is founded on a suit that does not disclose any cause of action against the respondent. It is maintained that even assuming the allegations made by the applicant are true they do not amount to trespass. It is further argued that having prayed for damages, the loss if any that he is likely to suffer is not irreparable. The court is therefore urged to reject the application as it does not satisfy the conditions set out in the case of Giella vs Cassman Brown [1973] EA 358.
4. I have carefully considered the application and the submissions made before me. Firstly, I find that although the application is brought under Order XXXIX Rules 1, 2 and 9 of the Civil Procedure Rules which deals with temporary injunction, the order sought by the applicant is not one of a temporary nature. It is not an interim order but one having finality and therefore is in the nature of a permanent injunction. Such an order cannot be granted at this stage before the parties are given an opportunity to present their evidence.
5. Secondly, the application is based on information which the applicant alleges to have “learnt” that the respondent is illegally offering the suit property for sale. Nonetheless, the applicant has not revealed the source of this information nor has he exhibited anything that would demonstrate the alleged actions of the respondent. In the circumstances the applicant has failed to demonstrate that there is any breach or threatened breach of his rights. I find that the applicant has not established a prima face case with a probability of success such as to justify the issuance of the order sought. In the circumstances, I find no merit in the chamber summons dated 11th November, 2010. The application is accordingly dismissed with costs.
Dated and delivered this 18th day of February, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Maina H/B for Ngigi for the plaintiff/applicant
Advocate for the defendant/applicant absent
B. Kosgei - Court clerk