[2019] KEELC 2909 (KLR)
The court found that the plaintiff was the registered proprietor of the suit property and that the property was transferred to the 2nd defendant under circumstances alleged to be irregular, with the 1st defendant having custody of the title. In the absence of any evidence to the contrary from the defendants, and...
Source-derived case information.
- Citation
- [2019] KEELC 2909 (KLR)
- Parties
- Plaintiff: Margaret Njoki Njoroge; Defendant: Elizabeth Wairimu Kinuthia; Defendant: Richard Gichini Wairegi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 101 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted
- Judges
- DO Ohungo
- Legal Topics
- Injunctive Relief, Proprietary Rights, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Njoki Njoroge
Plaintiff
Elizabeth Wairimu Kinuthia
Defendant
Richard Gichini Wairegi
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant grant of an interlocutory injunction.
- 2 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
- 3 Whether the balance of convenience tilts in favour of granting the injunction.
Ratio Decidendi
The court found that the plaintiff was the registered proprietor of the suit property and that the property was transferred to the 2nd defendant under circumstances alleged to be irregular, with the 1st defendant having custody of the title. In the absence of any evidence to the contrary from the defendants, and considering a restriction had been registered against the property, the court was satisfied that the plaintiff had established a prima facie case with a probability of success. The court further held that damages would not be an adequate remedy, making it necessary to preserve the suit property by granting an interlocutory injunction restraining the defendants from dealing with...
Court Disposition
injunction granted
Orders
- An injunction is granted restraining the defendants from selling, transferring, charging or leasing title number Nakuru Municipality Block 22/718 pending hearing and determination of this suit.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
CASE NO. 101 OF 2017
MARGARET NJOKI NJOROGE ......................PLAINTIFF
VERSUS
ELIZABETH WAIRIMU KINUTHIA .....1ST DEFENDANT
RICHARD GICHINI WAIREGI .............2ND DEFENDANT
RULING
1. By Notice of Motion dated 8th March 2017, the plaintiff seeks an injunction to restrain the defendants from selling, transferring, charging, leasing or in any other way dealing with title number Nakuru Municipality Block 22/718 (the suit property) pending hearing and determination of this suit. The application is supported by an affidavit sworn by the plaintiff.
2. Though served, the defendants have so far neither entered appearance in the suit nor filed any response to the application. They equally did not attend its hearing. Counsel for the applicant thus asked the court to allow the application.
3. I need not belabour the principles applicable while dealing with an application such as the present one. The applicant has to satisfy the test in Giella –vs- Cassman Brown & Co. Ltd [1973] E.A 358. She is required to establish a prima facie case with a probability of success. Even if she succeeds in doing so, an injunction will not to issue if damages can be an adequate compensation to her. Finally, if the court is in doubt as to the answers to the above two tests then the court will determine the matter on a balance of convenience. As was recently held by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, all the three Giella conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. If prima faciecase is not established, then irreparable injury and balance of convenience need no consideration.
4. From the material placed before the court, I am satisfied that the plaintiff was registered as proprietor of the suit property on 31st July 2007 and that the said property was transferred to the 2nd defendant on 11th May 2016. According to the plaintiff, she left the title document in the custody of the 1st defendant who is her niece and who irregularly transferred the property to herself on 12th April 2016. Although no certificate of search was annexed to support the allegation that the 1st defendant became registered proprietor on 12th April 2016, I have no reason to doubt it in the absence of evidence to the contrary. I further note that a restriction barring any dealings was registered against the suit property on 20th July 2016. In the circumstances, I am persuaded that the plaintiff has established a prima facie case with a probability of success. It is necessary to preserve the suit property. I do not think that damages will be an adequate remedy to the plaintiff.
5. In the end, I grant an injunction to restrain the defendants from selling, transferring, charging or leasing title number Nakuru Municipality Block 22/718 pending hearing and determination of this suit. Costs of the application are awarded to the plaintiff.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 19th day of June 2019.
D. O. OHUNGO
JUDGE
In the presence of:
Ms Wanuma holding brief for Mr Mutonyi for the plaintiff/ applicant
No appearance for the 1stdefendant/respondent
No appearance for the 2nd defendant/ respondent
Court Assistants: Beatrice & Lotkomoi