[2011] KEHC 2399 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit property, had established a prima facie case for the grant of a temporary injunction. The plaintiff's title deed and development approvals demonstrated its legal right to possess, use, and develop the property. The defendants' interference...
Source-derived case information.
- Citation
- [2011] KEHC 2399 (KLR)
- Parties
- Plaintiff: Malvi Investment Ltd; Defendant: Peter Wanjau; Defendant: Kuria Mwangi; Defendant: Irungu Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 10 of 2011
- Procedural Posture
- Temporary Injunction Application / Ruling on Interlocutory Application
- Outcome
- application allowed
- Legal Topics
- Temporary Injunctions, Trespass to Land, Proprietary Rights, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malvi Investment Ltd
Plaintiff
Peter Wanjau
Defendant
Kuria Mwangi
Defendant
Irungu Kamau
Defendant
Procedural Posture
Temporary Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from interfering with the suit property pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case with a probability of success.
- 3 Whether the plaintiff's rights as a registered proprietor are being infringed by the defendants.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit property, had established a prima facie case for the grant of a temporary injunction. The plaintiff's title deed and development approvals demonstrated its legal right to possess, use, and develop the property. The defendants' interference with these rights, in the absence of any opposition or lawful justification, warranted the court's intervention to preserve the status quo pending the hearing and determination of the suit. Applying the principles in Giella v Cassman Brown, the court concluded that the plaintiff was entitled to the temporary injunction sought.
Court Disposition
application allowed
Orders
- Temporary injunction granted restraining the defendants from interfering with L.R. No. 209/12824 pending determination of the suit.
- Orders granted in terms of prayers 3, 4, and 5 of the application.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC. 10 OF 2011
MALVI INVESTMENT LTD.................................................................................................PLAINTIFF
V E R S U S
PETER WANJAU.....................................................................................................1ST DEFENDANT
KURIA MWANGI.....................................................................................................2ND DEFENDANT
IRUNGU KAMAU.....................................................................................................3RD DEFENDANT
R U L I N G
This application was not opposed. The Plaintiff has shown, by the production of title deed marked “MS1”, that it is the registered proprietor of L.R. No. 209/12824 Ngara road, Ngara area of Nairobi. It seeks to develop a mall on the premises and has obtained the relevant approvals (“MS2”) from the City Council of Nairobi, the National Environment Management Authority and the Water Resources Management Authority. In the sworn affidavit by its director Manoj Salva, it is stated that when it commenced putting up a hoarding fence on the suit property the Defendants pulled it down and destroyed it saying it has grabbed the property. The suit was brought to permanently restrain the Defendants from this interference and also for general damages for the trespass. The present application under Order 39 rules 1, 2 and 3 of the Civil Procedure Rules is for a temporary injunction pending the hearing and determination of the suit.
On basis of Giella –Vs- Cassman Brown & Co. Ltd [1973] EA 358, I find that basis has been laid for the grant of a temporary injunction. The registration gives the Plaintiff an absolute and indefeasible claim to the suit property. It is entitled to possess, occupy, use, develop and quietly enjoy the property. It is this right that the Defendants are interfering with and which interference the court has the duty to restrain.
The application is consequently allowed in terms of prayers 3, 4 and 5.
DATED AND DELIVERED AT NAIROBITHIS 28TH DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E