[2012] KEHC 5011 (KLR)
The court found that the applicant's averments regarding the unlawful acquisition and imminent disposal of the suit parcels by the respondents were unchallenged, as the respondents failed to respond or appear. The court accepted the applicant's apprehension that the substratum of the suit would be destroyed if the...
Source-derived case information.
- Citation
- [2012] KEHC 5011 (KLR)
- Parties
- Applicant: Mutirithia Farmers Public Co. Limited; Respondent: Paul Njamba Gatari; Respondent: Peter Njuguna Kariuki; Respondent: Esther Wanjiru Thairu (as administrator of the Estate of Fredrick Thairu)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 199 of 2008
- Procedural Posture
- Civil Case / Interlocutory Injunction Ruling
- Outcome
- Interlocutory injunction granted in favour of the applicant.
- Judges
- SP Ouko
- Legal Topics
- Injunctive Relief, Land Disputes, Transfer of Property, Committee Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutirithia Farmers Public Co. Limited
Applicant
Paul Njamba Gatari
Respondent
Peter Njuguna Kariuki
Respondent
Esther Wanjiru Thairu (as administrator of the Estate of Fredrick Thairu)
Respondent
Procedural Posture
Civil Case / Interlocutory Injunction Ruling
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondents from disposing of the suit parcels of land pending determination of the suit.
- 2 Whether the respondents unlawfully acquired the suit parcels while serving as members of a probe committee of the applicant.
Ratio Decidendi
The court found that the applicant's averments regarding the unlawful acquisition and imminent disposal of the suit parcels by the respondents were unchallenged, as the respondents failed to respond or appear. The court accepted the applicant's apprehension that the substratum of the suit would be destroyed if the parcels were sold to third parties. Applying the principles for granting interlocutory injunctions, the court held that the balance of convenience favoured the applicant and that an injunction was warranted to preserve the subject matter of the suit pending its determination.
Court Disposition
Interlocutory injunction granted in favour of the applicant.
Orders
- An injunction is issued restraining the respondents from selling, sub-dividing or disposing of the suit parcels of land as specified in paragraph 3 of the motion dated 10th August, 2011, pending the hearing and determination of the suit.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 199 OF 2008
MUTIRITHIA FARMERS PUBLIC CO. LIMITED…………..PLAINTIFF/APPLICANT
VERSUS
PAUL NJAMBA GATARI…………………………1ST DEFENDANT/RESPONDENT
PETER NJUGUNA KARIUKI……………………..2ND DEFENDANT/RESPONDENT
ESTHER WANJIRU THAIRU (Sued as an administrator
of the Estate ofFREDRICK THAIRU………………..3RD DEFENDANT/RESPONDENT
RULING
The applicant, Mutirithia Farmers Public Company Limited brought this suit against the three respondents, its members, for orders that the latter do return or alternatively re-transfer certain unspecified parcels of land allegedly unlawfully taken by them from the applicant
In the meantime, by a notice of motion dated 10th August, 2011, the applicant has moved this court to restrain the respondents from selling, sub-dividing or disposing of:
i)shamba No.71 now re-subdivided is known as Mau Summit Molo Block 1/No.1077, 1078, 1079, 1080, 1082, 1083, 1084, 1085 and 195 (Mutirithia) held by the 2nd respondent, Peter Njuguna Kariuki;
ii)shamba No,.89 – re-subdivided into Mau Summit Molo Block 1/No.1187, 1188, 1189, 1190, 987, 986, 985, 984, 983, 982, 981, 980 and 278 (Mutirithia) and held by the 1st respondent, Paul Njamba Gatari;
iii)shamba No.41 and 335 (Mutirithia) – also Mau Summit Molo Block 1/988, 938 and 445.
It is the applicant’s contention that the respondents illegally acquired the above parcels of land from it while they were members of a probe committee appointed to inquire into the affairs of the applicant.
Upon discovery of the acquisition, the applicant brought this suit to recover the parcels. While the suit is pending determination, the respondents have caused a survey to be conducted with a view to sub-dividing and eventually selling the parcels in question to third parties. The applicant is apprehensive that should the intended sale proceed and given the number of parcels involved, the entire substratum of the suit would be destroyed.
There is no response to the application on record. The hearing notice was served and received under protest, but counsel for the respondents did not find it necessary to attend or ask another counsel to hold his brief as is the settled practice. The matter, as a result, proceeded ex parte.
The averments to the effect that the parcels in question were transferred from the applicant to the respondents by the latter while serving as members of the probe committee and the fact that the respondents are in the process of disposing of the parcels have not been challenged. It follows that there is a basis in the applicant’s apprehension of the suit properties being transferred to third parties to its detriment. Similarly and for the reasons stated, the balance of convenience tilts in favour of the applicant.
There will be injunction in terms of paragraph 3 of the motion dated 10th August, 2011 pending the hearing and determination of this suit.
Costs to be in the cause.
Dated, Signed and Delivered at Nakuru this 13th day of February, 2012.
W. OUKO
JUDGE