[2016] KEHC 4492 (KLR)
The court declined to grant the interlocutory injunction sought by the plaintiff because the issues raised are disputed and can only be determined after the main suit is heard. The court relied on the principle that, at the interlocutory stage, it should not make final findings of fact on contested matters. However,...
Source-derived case information.
- Citation
- [2016] KEHC 4492 (KLR)
- Parties
- Plaintiff: Julius Murithi Kimathi; Defendant: Zipporah Kithara Mukiri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 126 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- Application partly allowed; injunction denied; inhibition granted; directions for compliance and hearing issued.
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Injunctions, Temporary Inhibition Orders, Land Disputes, Order 11 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Murithi Kimathi
Plaintiff
Zipporah Kithara Mukiri
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from evicting him or interfering with his possession of the suit land pending determination of the suit.
- 2 Whether an order of inhibition should be issued to prevent the transfer or alienation of the suit land pending hearing and determination of the suit.
Ratio Decidendi
The court declined to grant the interlocutory injunction sought by the plaintiff because the issues raised are disputed and can only be determined after the main suit is heard. The court relied on the principle that, at the interlocutory stage, it should not make final findings of fact on contested matters. However, to preserve the subject matter of the suit, the court granted an order of inhibition to prevent the transfer or alienation of the suit land pending the hearing and determination of the main suit. The court further directed both parties to comply with Order 11 of the Civil Procedure Rules within specified timelines to facilitate expeditious hearing of the suit.
Court Disposition
Application partly allowed; injunction denied; inhibition granted; directions for compliance and hearing issued.
Orders
- Prayer 3 for injunctive orders is denied.
- Prayer 2 for inhibition is allowed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO 126 OF 2010
JULIUS MURITHI KIMATHI …......................................................PLAINTIFF
VERSUS
ZIPPORAH KITHARA MUKIRI................................................DEFENDANT
R U L I N G
This application is dated 14th October, 2016 and seeks orders:-
1. That this Honourable Court be pleased to certify this application as urgent and the same be heard exparte.
2. That this Honourble Court be pleased to issue and register an order of Temporary Inhibition against Land Reg. No. NTIMA/IGOKI/2429 pending the hearing and determination of this suit.
3. That this Honourable Court be pleased to issue an order of temporarily injunction restraining the defendant by herself, her agents or assignees from evicting the Plaintiff from land Registration NO. NTIMA/IGOKI/2429 and or interfering with her quiet possession of the suit land until this suit is heard and determined.
4. That costs of this application be provided for.
The application is supported by the Affidavit of JULIUS MURITHI KIMATHI and has the following grounds:-
a) The Respondent /Defendant has threatened to sell and transfer to third parties the Suit land and thus render the Plaintiff/Applicant and his family destitute despite being born and raised on the suit land.
b) The Defendant/Respondent has since clandestinely removed the caution over the subject land lodged by the Plaintiff and is in the process of transferring the land to third parties.
c) That the Plaintiffs interests and massive development on the suit land will be prejudiced if the intended sale and alienation takes place.
The parties have canvassed this application by way of Written Submissions. Many of the issues raised herein can only be determined after the main suit has been heard . I note that this suit has remained unheard for close to 6 years.
I do not wish to reinvent the wheel. The Court of Appeal in the case of Mbuthia Versus Jimba Credit Corporation [1988] KLR 1 has eruditely given directions regarding how Injunctive Interlocutory applications should be handled. It opined as follows:
“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issue of fact, but rather to weigh up the relevant strength of each side's propositions. The lower court judge had gone beyond his proper duties and made final findings of fact on disputed affidavits.”
I do not wish to decide on matters that can not be determined at this Interlocutory Stage. I opine that the weight of the parties diametrically opposed assertions falls in favour of declining to issue Injunctive Orders.
It is ordered as follows:-
Prayer 3 for Injunctive Orders is denied.
In the Interest Justice, prayer 2 for Inhibition is allowed.
The Plaintiff is ordered to fully comply with Order 11, CPR , within 30 days.
The Defendant is ordered to comply with Order 11, CPR, within 30 days after receipt of the Plaintiffs compliance documents and if the Plaintiff will not have complied within the stipulated time, the Defendant should nevertheless comply after the time stipulated for the Plaintiff to comply has elapsed.
The Plaintiff is ordered to set down this case for hearing within 90 days, and in default, the Defendant may do so.
It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 11TH DAY OF MAY, 2016 IN THE PRESENCE OF:-
Cc: Daniel /Lilian
Wamache h/b Kaimenyi for the Plaintiffs
Mutura h/b Kioga for the Defendant
P.M. NJOROGE
JUDGE