[2005] KEHC 1316 (KLR)
The court declined to grant the interlocutory injunction sought by the plaintiffs because there was uncertainty as to who had the right to the suit premises. The court found that the plaintiffs had not demonstrated proper appointment and authority as trustees to bring the suit on behalf of the Kenya African National...
Source-derived case information.
- Citation
- [2005] KEHC 1316 (KLR)
- Parties
- Plaintiff: Kenya African National Union, Mathare Sub Branch; Plaintiff: Samson Mburu Huho; Plaintiff: Zakaria Maina; Plaintiff: John Maina; Defendant: Gerishon Kirima; Defendant: Stephen Kirima Kamau; Defendant: Moses Akama; Defendant: Wario Agal; Defendant: Joseph Kamau Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 883 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application for injunction declined; matter stood over for two months for regularization of trusteeship; costs reserved.
- Judges
- PJ Ransley
- Legal Topics
- Trusteeship Disputes, Injunctive Relief, Land Ownership, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya African National Union, Mathare Sub Branch
Plaintiff
Samson Mburu Huho
Plaintiff
Zakaria Maina
Plaintiff
John Maina
Plaintiff
Gerishon Kirima
Defendant
Stephen Kirima Kamau
Defendant
Moses Akama
Defendant
Wario Agal
Defendant
Joseph Kamau Mwaura
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are properly constituted as trustees to bring the suit on behalf of the Kenya African National Union (Mathare Sub Branch).
- 2 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendants from interfering with the suit property pending determination of the suit.
- 3 Whether the appointment and position of trustees has been properly regularized.
Ratio Decidendi
The court declined to grant the interlocutory injunction sought by the plaintiffs because there was uncertainty as to who had the right to the suit premises. The court found that the plaintiffs had not demonstrated proper appointment and authority as trustees to bring the suit on behalf of the Kenya African National Union (Mathare Sub Branch). The heading of the suit was incorrect, and one of the purported trustees, John Gitau, was deceased before the suit was filed. The court emphasized that the parties needed to regularize the appointment and position of trustees before the matter could proceed. As a result, the application for an injunction was not granted, and the matter was stood...
Court Disposition
Application for injunction declined; matter stood over for two months for regularization of trusteeship; costs reserved.
Orders
- No injunction is granted pending regularization of trusteeship.
- Matter stood over for two months to enable parties to regularize appointment and position of trustees.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 883 of 2005
KENYA AFRICAN NATIONAL UNION
MATHARE SUB BRANCH ………………………………….………..1ST PLAINTIFF
SAMSON MBURU HUHO…………………………………………….2ND PLAINTIFF
ZAKARIA MAINA……………………..……………………………...3RD PLAINTIFF
JOHN MAINA……………………………...…………………………..4TH PLAINTIFF
VERSUS
GERISHON KIRIMA……………………….….……….…………...1ST DEFENDANT
STEPHEN KIRIMA KAMAU……………….……….…………….2ND DEFENDANT
MOSES AKAMA…………………………….……..……………….3RD DEFENDANT
WARIO AGAL……………………………………..……………….4TH DEFENDANT
JOSEPH KAMAU MWAURA…………………..………………...5TH DEFENDANT
RULING
By their application of the 14th July 2005, the Applicants seek an injunction in the following terms:
2THAT there be an injunction against the five Respondents, their servants, agents. And or assigns restraining them from forcefully destroying a church and taking over/ alienating the Plaintiff’s parcel of land L.R 219/35, settling or interfering with it, pending the hearing and final determination of the suit.
The application is supported by the affidavit of the Second Plaintiff and is based on the allegation that the 1st Plaintiff is the registered proprietor of the suit premises. The 1st Plaintiff is not a legal person but the suit premises are registered in the names of Zakarai Maina, Samson Mburu and John Maina as trustees for Kenya National Union (Mathare Sub Branch). The Plaint and Chamber Summons was amended to include the names of the trustees in the suit as trustees for the 1st Plaintiff. The suit should properly has been entitled. Samuel Mburu Huho, Zakaria Maina and John Maina as Trustees of the Kenya African National Union (Mathare Sub Branch) Plaintiff.
To the Supporting Affidavit of Samson Mburu Huho is annexed a copy of the title deed to the suit premises in the name of the Plaintiff. He depones that a structure was constructed on the suit premises and rented out to a church at a monthly rent of Kshs 5,000. It is further alleged that the five Respondents have stormed the suit premises and have threatened to destroy the church.
A Replying Affidavit was sworn by the 1st Respondent. He depones that he is the Chairman of the Starehe Branch of KANU and that elections took place on the 18th January 2005 to elect a Chairman and other officials for the Mathare Ward of KANU. At those elections Samson Mburu Huho was replaced as the Chairman by one Joseph Kamau Mwaura. Annexed as GK2 is a copy of the results. The other two trustees who have brought this suit do not appear to have been elected as officials of the ward. It is alleged that Samson Mburu has refused to hand over the documents for the Sub Branch to the new officers elected.
The Applicant filed a Reply to the Replying Affidavit in which it was disclosed that John Gitau died in 1997 and that one Samuel Gicura was elected to replace him although no evidence of this change is produced. In this matter it appears that Samson Mburu Huho is the instigator of this suit. John Gitau has been made a party to this suit and Samson Mburu Huho states in the supporting affidavit that he has been authorized to swear the affidavit. It is not stated who authorized him do so, however. Clearly it could not have been by John Gitau who was deceased before the suit was filed.
As l pointed out before, the heading to this suit is not correct doubely so as John Gitau cannot be included as a party. Nothing has been shown to me as to the manner in which the Trustees were appointed. If it was by deed then a further deed should be executed to appoint any new trustees in accordance with the wishes of the settlor or beneficiary in this case l presume KANU. A lot was said about the roles of the KANU sub branch and Starehe Brach. However, it appears that the Sub branch is a under the control of the Starehe Branch. The statement in paragraph 5 of the Replying Affidavit is not refuted in the reply to the Replying Affidavit.
The parties should put their house in order. I therefore stand over this matter for 2 months to enable the parties to regularize the appointment and position of the trustees. In the meanwhile, l do not grant an injunction as in my view it is uncertain who has the right to the suit premises. Costs are reserved.
Dated and Delivered on 30th day of September, 2005
P.J RANSLEY
JUDGE