[2017] KEELC 3176 (KLR)
The court found that the plaintiff established a prima facie case regarding her interest in the suit property, supported by her affidavit evidence that she purchased the land from the defendant's late husband. The absence of a translation of the sale agreement was not fatal, as the defendant did not contest the...
Source-derived case information.
- Citation
- [2017] KEELC 3176 (KLR)
- Parties
- Plaintiff: Margaret Wanjiku Wainaina; Defendant: Lucia Wangari Mbugua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 73 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted
- Judges
- DO Ohungo
- Legal Topics
- Injunctive Relief, Beneficial Ownership, Land Transfer Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wanjiku Wainaina
Plaintiff
Lucia Wangari Mbugua
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for 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 established a prima facie case regarding her interest in the suit property, supported by her affidavit evidence that she purchased the land from the defendant's late husband. The absence of a translation of the sale agreement was not fatal, as the defendant did not contest the application or provide any evidence to the contrary. The court was satisfied that unless an injunction was granted, the plaintiff risked suffering harm that could not be adequately compensated by damages, particularly as the defendant had begun subdividing the property. Accordingly, the court granted an interlocutory injunction restraining the defendant and her agents from...
Court Disposition
injunction granted
Orders
- An interlocutory injunction is issued restraining the defendant, her agents, associates, employees, servants, and any other person acting on her behalf from interfering, disrupting, trespassing, encroaching, dealing with, erecting illegal structures or buildings, or doing anything adverse to the plaintiff's...
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 73 OF 2017
MARGARET WANJIKU WAINAINA ………………......PLAINTIFF
VERSUS
LUCIA WANGARI MBUGUA………..….....................DEFENDANT
RULING
(An application for injunction; prima facie case established; damages would not compensate the applicant; application allowed)
1. The plaintiff filed this suit on 27th February 2017. In the plaint dated 23rd February 2017, she seeks judgment against the defendant for:
a) An order directing that land parcel plot NAIVASHA/MWICHIRINGIRI BLOCK 4/23061 be transferred from the defendant to the plaintiff and in default the Deputy Registrar of the Honourable Court to cause transfer on behalf of the defendant.
b) An injunction order restraining the defendant from interfering, disrupting, trespassing, encroaching, dealing including occupying, erecting of illegal structures or buildings or doing anything whatsoever adverse to the plaintiff's interests, in plot NAIVASH/MWICHIRINGIRI BLOCK 4/23061.
c) Costs of the suit plus interest hereof.
Simultaneously with the plaint, the plaintiff also filed notice of motion dated 23rd February 2017 wherein she seeks the following orders.
1. [Spent].
2. [Spent].
3. THAT the defendant/respondents, their agents associates, employees, servants and or any other person be and are hereby restrained from interfering, disrupting, trespassing, encroaching, dealing including occupying, erecting of illegal structures or buildings or doing anything whatsoever adverse to the plaintiff's interests, in NAIVASHA.MWICHIRINGIRI BLOCK 4/23061 [sic] pending the hearing and determination of the suit herein.
4. THAT costs of the application be provided for.
3. The application is supported by an affidavit of the plaintiff sworn on 23rd February 2017 and filed in court on 27th February 2017. The plaintiff deposes that she is the beneficial owner of NAIVASHA.MWICHIRINGIRI BLOCK 4/23061 [sic] which she purchased from the defendant's husband through a sale agreement 26th May 2004. A copy of the said sale agreement is annexed to the affidavit but it is in Kikuyu language and there is no translation.
4. The plaintiff further deposes that the vendor passed away before transferring the property to the plaintiff. Following the vendor's death, the defendant refused to transfer the property to the plaintiff and instead started subdividing the land. The plaintiff therefore prays for the orders sought in the application.
5. When the application came up for inter parte hearing on 9th March 2017, there was no appearance for the defendant and no response had been filed by the defendant to the application. Being satisfied by an affidavit of service on record that the defendant was served, I allowed the application to proceed. Counsel for the plaintiff relied entirely on the application and supporting affidavit and urged the court to allow the application.
6. I have considered the application and counsel’s submissions. The application is unopposed and there is no evidence to controvert what has been put before the court by the plaintiff. I am therefore satisfied that the plaintiff has established a prima facie case with regard to her interest in the suit property. Even though no translation of the sale agreement has been availed, there is evidence on oath from the plaintiff that she purchased the suit property. I am equally satisfied that unless an injunction is granted, the plaintiff may suffer damage that may not be compensated by an award of damages.
7. In the circumstances, I grant the plaintiff an injunction restraining the defendant, her agents associates, employees, servants and or any other person acting on her behalf from interfering, disrupting, trespassing, encroaching, dealing with, erecting of illegal structures or buildings or doing anything whatsoever adverse to the plaintiff's interests, in NAIVASHA/MWICHIRINGIRI BLOCK 4/23061 pending the hearing and determination of this suit. Costs to the plaintiff.
Dated, signed and delivered in open court at Nakuru this 21st day of April 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Kisila holding brief for Mr. G.N. Kimani for the plaintiff
No appearance for the defendant
Court Assistant: Gichaba