[2012] KEHC 5685 (KLR)
The court found that the Plaintiff established a prima facie case for an injunction, having produced title deeds and probate documents evidencing ownership of the suit properties. The Defendant failed to provide evidence of ownership and her claims of fraud and adverse possession require determination at full trial,...
Source-derived case information.
- Citation
- [2012] KEHC 5685 (KLR)
- Parties
- Plaintiff: Moses Mthenge Ndivo; Defendant: Maria Kivinya Ndivo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 527 of 2011
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for temporary injunction allowed.
- Judges
- P Nyamweya
- Legal Topics
- Injunctions, Ownership Disputes, Adverse Possession, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Mthenge Ndivo
Plaintiff
Maria Kivinya Ndivo
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case for grant of a temporary injunction restraining the Defendant from interfering with the suit properties.
- 2 Whether the Plaintiff would suffer irreparable harm not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience lies in favour of granting the injunction.
Ratio Decidendi
The court found that the Plaintiff established a prima facie case for an injunction, having produced title deeds and probate documents evidencing ownership of the suit properties. The Defendant failed to provide evidence of ownership and her claims of fraud and adverse possession require determination at full trial, not at the interlocutory stage. The court was not satisfied that damages would be an adequate remedy, as the Defendant did not demonstrate ability to compensate the Plaintiff. Accordingly, the balance of convenience favoured the Plaintiff, warranting the grant of a temporary injunction to preserve the status quo pending full hearing.
Court Disposition
Plaintiff's application for temporary injunction allowed.
Orders
- Defendant is restrained from interfering with the Plaintiff's ownership and possession of Title Numbers Dagoretti/Uthiru/1901 to 1913 inclusive, together with all developments and buildings thereon, pending hearing and determination of the application or until further orders of the court.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
Environmental & Land Case 527 of 2011
MOSES MTHENGE NDIVO……………….….……………..…PLAINTIFF
VERSUS
MARIA KIVINYA NDIVO……........…………………….. DEFENDANT
RULING
The Plaintiff’s application is by way of a Notice of Motion dated 30th September 2011 and filed on the same date. The Plaintiff is seeking a temporary order of injunction from this Court restraining the Defendant from interfering with the Plaintiff’s ownership and possession of Title Numbers DAGORETTI/UTHIRU/ 1901 to 1913 (hereinafter referred to as the suit properties) both inclusive together with all developments thereon, pending the hearing and determination of this application.
The gist of the Plaintiff’s application is that he is the owner of the suit properties having inherited the same from his deceased mother Zipporah Mweru Ndivo. He has produced copies of the title deeds to the suit properties in his name, as well as a copy of his deceased mother’s will. The detailed averments are in his supporting affidavit sworn on 30th September 2011, a supplementary affidavit sworn on 16th December 2011, and written submissions filed on 19th December 2011. He also produced in evidence the grant of probate of will and certificate of confirmation of grant issued to the executor of his deceased mother’s will by this Court in Nairobi Succession Cause No. 2549 of 1999.
The Plaintiff further states that the Defendant who is his elder sister also inherited her own property from their deceased mother, and has wrongfully and illegally detained and remained in possession and occupation of a house standing on LR. No. Darogetti/Uthiru 1905, despite several requests to vacate the premises. It also alleged that the Defendant has wrongfully caused to be registered cautions against the suit properties without any claim of right or reasonable cause, thereby denying the Plaintiff the right of absolute ownership and enjoyment of the said titles. The Plaintiff is also apprehensive that his property is in danger of being wasted, damaged or alienated.
The Defendant responded in a replying affidavit sworn on 24th November 2011 and in submissions dated 29th February 2012. The Defendant states that the Plaintiff who has committed fraud by invoking a non-existent will purporting to be the administrator of the estate of her late father, and by subdividing, demarcating and selling part of the suit properties using fraudulent documents without her knowledge. The Defendant also averred that she has occupied, used and lived in the suit properties peacefully since 1970. and it is the only means of livelihood that she has with her two dependants hence the cautions she placed on the same.
The parties reiterated the above arguments at the hearing of the application on 26th April 2012 with the Defendant in addition submitting that she has filed a counterclaim for adverse possession.
I have carefully considered the arguments made by the parties and find that the Plaintiff has established a prima facie case as required by the decision in Giella vs Cassman Brown & Co Ltd,(1973) EA 358 for an injunction to issue. This is primarily for the reason that the Plaintiff has produced in evidence copies of his title to the suit properties, while the Defendant has not produced any evidence of ownership. The issues raised by the Defendant of fraud and the counterclaim for adverse possession can only be decided upon after full trial and not at this stage. The only question remaining to be determined is whether damages would be an adequate remedy to the Plaintiff. The Defendant has not pleaded that she is able to compensate the Plaintiff in monetary terms, and I am therefore not able to make any finding in this regard.
For these reasons the Plaintiff’s application dated 30th September 2011 is allowed, and the Defendant from interfering with the Plaintiff’s ownership and possession of the land parcels comprised in Title Numbers Dagoretti/Uthiru/1901 to 1913 both inclusive together with all developments and buildings thereon, pending the hearing and determination of this application or until further orders of this court.
The costs of the application shall be in the cause.
Dated, signed and delivered in open court at Nairobi this 26th day of July 2012.
P. NYAMWEYA
JUDGE