[2010] KEHC 3894 (KLR)
The court found that the applicant had established a prima facie case for the grant of an interlocutory injunction, as he had demonstrated long-standing occupation and development of the disputed portion of land, and the respondent had neither opposed the application nor appeared in court. The absence of opposition...
Source-derived case information.
- Citation
- [2010] KEHC 3894 (KLR)
- Parties
- Applicant: Peter Kihara Kuria; Respondent: Hannah Nyambura Kuria
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 83 of 1994
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction
- Outcome
- Application allowed. Injunction granted as prayed. Costs awarded to the applicant.
- Legal Topics
- Injunctive Relief, Administration of Estates, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kihara Kuria
Applicant
Hannah Nyambura Kuria
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from interfering with his portion of Plot No. 320 Milangine Scheme pending determination of the succession cause.
- 2 Whether the respondent's failure to oppose the application warrants granting the orders sought.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of an interlocutory injunction, as he had demonstrated long-standing occupation and development of the disputed portion of land, and the respondent had neither opposed the application nor appeared in court. The absence of opposition and the risk of waste or interference with the applicant's portion of the estate justified the issuance of an injunction to preserve the status quo pending the determination of the succession cause.
Court Disposition
Application allowed. Injunction granted as prayed. Costs awarded to the applicant.
Orders
- An injunction is hereby issued restraining the respondent by herself, her servants and/or agents from cutting down trees, ploughing, building and/or putting to waste the applicant’s portion of Plot No. 320 Milangine Scheme pending the hearing and determination of this cause.
- The applicant shall have the costs of this application against the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU Succession Cause 83 of 1994
IN THE MATTER OF THE ESTATE OF MBUGUA WANGUYU (DECEASED)
PETER KIHARA KURIA………………….……..APPLICANT
VERSUS
HANNAH NYAMBURA KURIA……………..RESPONDENT
RULING
The Applicant and the Respondent are siblings. The Applicant claims that before their deceased father died, he had subdivided his piece of land and allocated portions thereof to his children. The Applicant took his 9 acres portion in 1989, developed it and has peacefully lived on it since then. His sister, the Respondent, who is married and has her own land in Ngarasha in Nakuru has now invaded his land and is claiming about 2. 25 acres out of it. Pending the hearing and determination of this cause, the Applicant seeks under Sections 45, 47 and 55 of the Law of Succession Act as well as Rules 49 and 73 of the Probate and Administration Rules an injunction to restrain the Respondent from cutting down trees, ploughing, building and or putting to waste his portion of Plot No. 320 Milangine Scheme. The application is supported by the Applicant’s affidavit.
Though served the Respondent neither filed any document in opposition to the application nor did she appear at the hearing to oppose it. In the circumstances and having considered the matter, I allow the application as prayed and order that pending the hearing and determination of this cause, an injunction is hereby issued to restrain the Respondent by herself, her servants and/or agents from cutting down trees, ploughing, building and or putting to waste the Applicant’s portion of Plot No. 320 Milangine Scheme.
The Applicant shall have the costs of this application against the Respondent.
DATED and delivered this 19th day of January, 2010.
D. K. MARAGA
JUDGE.