[2008] KEHC 3757 (KLR)
The court found that the applicants failed to demonstrate a prima facie case with a probability of success because they did not provide documentary evidence that the suit land was registered in their deceased father's name. The only evidence produced showed the respondent as the registered proprietor, with no...
Source-derived case information.
- Citation
- [2008] KEHC 3757 (KLR)
- Parties
- Plaintiff: Patrick Gitonga M’Itaru; Plaintiff: Geoffrey Muriungi M’Itaru; Plaintiff: Henry Thiauri M’Itaru; Plaintiff: Gerald Kirimi M’Itaru; Defendant: Joel Mutuma M’Itaru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 124 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Injunctions, Land Title Disputes, Succession Without Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Gitonga M’Itaru
Plaintiff
Geoffrey Muriungi M’Itaru
Plaintiff
Henry Thiauri M’Itaru
Plaintiff
Gerald Kirimi M’Itaru
Plaintiff
Joel Mutuma M’Itaru
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants have established a prima facie case with a probability of success for the grant of an interlocutory injunction.
- 2 Whether the applicants have demonstrated any registrable interest in the disputed land parcel.
- 3 Whether the applicants are entitled to an inhibition order against the suit land.
Ratio Decidendi
The court found that the applicants failed to demonstrate a prima facie case with a probability of success because they did not provide documentary evidence that the suit land was registered in their deceased father's name. The only evidence produced showed the respondent as the registered proprietor, with no indication of how the property devolved. Furthermore, the applicants had not taken out a grant of representation for their father's estate, undermining their claim to any registrable interest in the land. As a result, the threshold for granting an interlocutory injunction was not met, and the application was dismissed without consideration of the remaining conditions for injunctive...
Court Disposition
application dismissed
Orders
- The application for injunction and inhibition is dismissed.
- Temporary orders of injunction and inhibition issued on 2nd October 2007 are vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Suit 124 of 2007
PATRICK GITONGA M’ITARU …………….…… 1ST PLAINTIFF
GEOFFREY MURIUNGI M’ITARU ……………... 2ND PLAINTIFF
HENRY THIAURI M’ITARU ...……….……….….. 3RD PLAINTIFF
GERALD KIRIMI M’ITARU ……………………… 4TH PLAINTIFF
VERSUS
JOEL MUTUMA M’ITARU ………………………....DEFENDANT
RULING
The chamber summons dated 31st October 2007 was duly served upon the respondent who failed to attend the court or reply to it. In the result the application was argued exparte.
The application seeks two substantive orders, namely, an injunction to restrain the respondent from interfering with or alienating or dealing with land parcel No. Ithima/Antuambui/2905 pending the determination of this application interpartes. It also seeks inhibition order to be registered against land No. Ithima/Antuambui/2905.
It is the applicants’ case that they are sons of the deceased, M’Itaru Kaiyera, who was the registered proprietor of the suit land comprising 6. 20acres. That as a family they had agreed to sub-divide the suit land and distribute it equally amongst themselves.
They further contend that the respondent has fraudulently transferred the suit land to himself without filing any succession cause and is now in the process of transferring the same to third parties. The respondent has also threatened to evict the applicants from the land. The application is supported also by an affidavit sworn by the mother of the parties, Regina Mukomua M’Itaru to the effect that the respondent was entrusted by the family to pursue the legal process of succession but instead he transferred the land to himself.
I have considered the application and the annextures as well as submissions by counsel. It is now settled that an applicant seeking injunction must show a prima faciecase with a probability of success. It is also trite that an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury. When the court is in doubt it will decide the application on the balance of convenience. See Giella V. Cassman Brown & Co. Ltd(1973) EA 358. The above conditions are sequential so that the second condition can only be addressed if the first one is satisfied and only when the court is in doubt will the third one can be addressed. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society (2001) IEA 86. The applicants claim is that the suit land was registered in the name of their deceased father. They have not, however, annexed any documentary evidence to support this. The certificate of official search exhibited only confirms that the respondent is the registered proprietor of the suit land. It does not show how the property devolved. Secondly, their father, according to their own averment, died on 22nd May 1995, yet they have not taken out any grant of representation in respect of his estate including the suit land.
I come to the conclusion that, at this interlocutory stage, the applicants have not satisfied me that they have any registrable interest in the land in dispute. They have therefore failed to demonstrate that they have a prima faciecase with a probability of success. In the result no useful purpose will be served in considering the other two conditions in the Giella case.
In a nutshell the application fails and is dismissed. Temporary orders of injunction and inhibition issued and 2nd October 2007 are vacated. I make no orders as to costs.
Dated and delivered at Meru this 1st day of February 2008.
W. OUKO
JUDGE