[2010] KEHC 3160 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success and that the balance of convenience required preservation of the subject property. Given the conflicting affidavits and the fact that the substantive issues would be determined at trial, the court held that the...
Source-derived case information.
- Citation
- [2010] KEHC 3160 (KLR)
- Parties
- Plaintiff: Mary Wangui Kamuthu; Defendant: Anthony Mbugua Kongo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 525 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for interlocutory injunction granted.
- Legal Topics
- Injunctive Relief, Joint Ownership, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wangui Kamuthu
Plaintiff
Anthony Mbugua Kongo
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success to warrant an interlocutory injunction.
- 2 Whether the subject property should be preserved pending the hearing and determination of the suit.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success and that the balance of convenience required preservation of the subject property. Given the conflicting affidavits and the fact that the substantive issues would be determined at trial, the court held that the appropriate course was to maintain the status quo by confirming the interim injunction. This would ensure that neither party's interests were prejudiced before the main suit was heard and determined. The restraining orders previously granted were thus confirmed to preserve the property and prevent its disposal, pending the outcome of the proceedings.
Court Disposition
Plaintiff's application for interlocutory injunction granted.
Orders
- The restraining orders against the defendant issued on 15th October, 2009 are confirmed and shall remain in force until the suit is heard and determined.
- Costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 525 of 2009
MARY WANGUI KAMUTHU …………………………….……..PLAINTIFF
VERSUS
ANTHONY MBUGUA KONGO…………………………..……DEFENDANT
RULING
At the centre of these proceedings is a parcel of land L.R. No. Nairobi/Block 144/1233. The plaintiff brought this suit against the defendant for an order that she be declared a joint owner in equal shares and the Land Registrar to reflect this upon issuance of the Title Deed.
Alongside the plaint, the plaintiff filed an application by way of Chamber Summons for an order of injunction to restrain the defendant, his servant and/or agent from selling or disposing of the said property.On 15th October, 2009 this court gave an interim order to that effect.
The parties subsequently argued the application inter partes and counsel have filed written submissions.From the outset I wish to observe that, most of the matters canvassed in the affidavits of the parties and the submissions that followed, belong to the province of a main trial.Those are averments that have not been subjected to cross-examination and as they stand now, it is the word of the plaintiff against the defendant.
At this stage however, what the plaintiff is required to show is a prima facie case with a probability of success and that, if the order is not granted loss may occur that may not be compensated by an award of damages.
I have considered what both parties have presented.I have come to the conclusion that, the best way to secure the interests of both parties is to preserve the subject matter herein.In that regard therefore the plaintiff’s application succeeds.The restraining orders given against the defendant on 15th October, 2009 are hereby confirmed and shall remain in place until this suit is heard and determined.Costs in the cause.
Orders accordingly.
Dated, signed and delivered at Nairobi this 27th day of April, 2010
A.MBOGHOLI MSAGHA