[1998] KEHC 226 (KLR)
The court found that the applicant's affidavit did not comply with the legal requirements, as it was based on hearsay information from unnamed mutual friends without disclosure of sources or grounds. No evidence of ownership of the properties was provided at this stage. Given the drastic nature of the orders sought...
Source-derived case information.
- Citation
- [1998] KEHC 226 (KLR)
- Parties
- Plaintiff: Mercy Nduta King'ara; Defendant: Samuel King'ara Mikuro
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2345 of 1997
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Affidavit Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Nduta King'ara
Plaintiff
Samuel King'ara Mikuro
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has met the legal threshold for grant of an interlocutory injunction restraining the respondent from dealing with the subject properties.
- 2 Whether the supporting affidavit complies with the requirements of law regarding admissible evidence.
Ratio Decidendi
The court found that the applicant's affidavit did not comply with the legal requirements, as it was based on hearsay information from unnamed mutual friends without disclosure of sources or grounds. No evidence of ownership of the properties was provided at this stage. Given the drastic nature of the orders sought and the lack of admissible evidence, the court held that the applicant had not established a prima facie case or met the threshold for grant of an interlocutory injunction. The application was therefore dismissed, with the applicant advised to pursue her claim at trial where she can properly justify her case.
Court Disposition
application dismissed with costs
Orders
- The application for interlocutory injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2345 OF 1997
MERCY NDUTA KING’ARA...........................................PLAINTIFF -versus- SAMUEL KING’ARA MIKURO........................................DEFENDANT
R U L I N G
The applicant has moved the court under Order 39 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for orders that the respondent be restrained from selling, charging, transferring or in any manner alienating the properties set out in the Chamber Summons. The application is supported by an affidavit sworn by the applicant to which grounds of opposition and replying affidavit have been filed. Both learned counsel have also addressed the court. The thrust of the applicant’s case is to be found in paragraph 3 of the affidavit in support of the application which reads as follows:
“3. THAT I am informed by mutual friends which information I verily believe to be true that the respondent is in the process of selling off and or transferring properties subject of these proceedings so as to vegate these proceedings.”
It is a requirement of law that affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove. Where an affidavit contains statements of information and belief sources and grounds thereof are to be disclosed. (see Order 18 Rule 3 of the Civil Procedure Rules)
The applicant’s affidavits falls short of that and considering the drastic orders sought especially where no evidence of ownership has been advanced at this stage, on that ground alone the applicant must fail. The applicant has to wait for her day in court when she will be in a position to justify her claim in line with her pleadings. For now the application is dismissed with costs.
Dated and delivered at Nairobi this 28th day of April, 1998.
A. MBOGHOLI MSAGHA
JUDGE