Patrick Gitonga Githinji v Catherine Karimi Mitheu & Samuel Mithika Karuru [2017] KEELC 90 (KLR)
- Citation
- [2017] KEELC 90 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Case number
- Environment & Land Case 210 of 2017
- Language
- English
More details
- Court
- Environment and Land Court
- Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Case number
- Environment & Land Case 210 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the plaintiff is in occupation of the suit property and has developed it. The plaintiff's claims of a valid agreement and fraudulent sale to the 2nd defendant were not rebutted, as the defendants failed to file any response or documents despite service. Given the unrebutted evidence and urgency due to the threat of eviction, the court held that the plaintiff had established a prima facie case warranting protection by way of an interlocutory injunction. The court therefore granted the injunction restraining the defendants from interfering with the plaintiff's occupation of the property for a period of eight months, pending further proceedings.
Court disposition
interlocutory injunction granted for 8 months
Orders
- An order of injunction is issued restraining the defendants, their agents, assignees or anybody acting on their behalf from entering or interfering in any way with the plaintiff’s peaceful occupation and utilization of parcel No. AMWATHI/MAUA/15546 for a period of 8 months.
- No orders as to costs.
02
Material facts
Parties
Patrick Gitonga Githinji
Applicant Counsel: OgotiCatherine Karimi Mitheu
RespondentSamuel Mithika Karuru
Respondent03
Procedural history
Posture
Injunction Application / Ruling on Interlocutory Injunction
04
Questions and positions
Legal issues
- 01
Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from interfering with his occupation of parcel No. AMWATHI/MAUA/15546 pending determination of the suit.
- 02
Whether the plaintiff has established a prima facie case for grant of injunctive relief.
Party arguments
- Applicant
- The plaintiff is in occupation of the suit property, has developed it, and has a valid agreement with the 1st defendant for its purchase. The 1st defendant has fraudulently sold the same parcel to the 2nd defendant before full payment was made and has issued a vacation notice to the plaintiff. The plaintiff seeks protection from eviction or interference until the suit is heard and determined.
- Respondent
- The defendants did not file any documents or responses to rebut the plaintiff's claims despite being served.
05
Court’s reasoning
Legal principles
- 01
Giella v Cassman Brown & Co Ltd [1973] EA 358
An applicant for an interlocutory injunction must demonstrate a prima facie case with a probability of success, that they will suffer irreparable harm not compensable by damages, and that the balance of convenience tilts in their favour.
- 02
General principles of civil procedure
Unopposed applications may be granted where the applicant's claims are unrebutted and merit is established.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the plaintiff is in occupation of the suit property and has developed it. The plaintiff's claims of a valid agreement and fraudulent sale to the 2nd defendant were not rebutted, as the defendants failed to file any response or documents despite service. Given the unrebutted evidence and urgency due to the threat of eviction, the court held that the plaintiff had established a prima facie case warranting protection by way of an interlocutory injunction. The court therefore granted the injunction restraining the defendants from interfering with the plaintiff's occupation of the property for a period of eight months, pending further proceedings.
Obiter and limits
- No orders as to costs were made in this application.
Court disposition
interlocutory injunction granted for 8 months
- An order of injunction is issued restraining the defendants, their agents, assignees or anybody acting on their behalf from entering or interfering in any way with the plaintiff’s peaceful occupation and utilization of parcel No. AMWATHI/MAUA/15546 for a period of 8 months.
- No orders as to costs.
Source and reliance status
Environment and Land Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
REPUBLIC OF KENYA
IN THE ENVIROMENT AND LAND COURT OF AT MERU
E&L CASE NO. 210 OF 2017
PATRICK GITONGA GITHINJI...................................PLAINTIFF/APPLICANT
VERSUS
CATHERINE KARIMI MITHEU....................1ST DEFENDANT/RESPONDENT
SAMUEL MITHIKA KARURU......................2ND DEFENDANT/RESPONDENT
R U L I N G
1. The Notice of Motion dated 13th July, 2017 seeks the following orders:-
1) Spent.
2) That the Hon. Court be pleased to issue an order of injunction restraining the defendants, their agents, assignees or anybody acting on their behalf from entering or interfering in any way with the plaintiff’s peaceful occupation and utilization of parcel No. AMWATHI/MAUA/15546 until this application is heard interparties.
3) That this Hon. Court be pleased to confirm prayer (2) above until this suit is heard and determined.
4) That costs of this application be provided.
2. The application is based on the grounds:-
1) That it is the Plaintiff who is in occupation of the suit.
2) The Plaintiff has a valid agreement with the 1st defendant who sold him the whole of the subject parcel.
3) That now the 1st Defendant has fraudulently sold the same parcel to the 2nd defendant even before the due payment reaches hence the urgency herein.
4) Also the 1st defendant has issued a vacation notice to the plaintiff hence the urgency.
5) That now the Plaintiff wants this application to be allowed until the suit herein is heard and determined.
3. Applicant has sworn an affidavit (dated 13. 07. 17) where he states that he is in occupation of the Suitland. He has developed the property whereby he has built a semi-permanent house.
Applicant’s claims have not been rebutted as defendants have not filed any documents despite service.
In the circumstances, I find that the application is merited. I allow the same but Injunctive Orders shall remain in force for a period of8 months. No orders as to costs.
DELIVERED, SIGNED AND DATED THIS 24TH OCTOBER, 2017 IN THE PRESENCE OF:-
C:AJanet
Miss Ondari H/B for Ogoti for Plaintiff /Applicant present
HON. L.N. MBUGUA
ELC JUDGE
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