[2014] KEHC 5053 (KLR)
The court found that although the ex parte injunction had lapsed by operation of law due to lack of inter partes hearing and extension, the Plaintiff raised a serious question regarding the validity of the Defendant's title to the suit property. Given the existence of multiple related suits and the unresolved...
Source-derived case information.
- Citation
- [2014] KEHC 5053 (KLR)
- Parties
- Applicant: Philomena Murugi Ngugi; Respondent: Jane Njeri Kamau
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 297 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Discharge Injunction
- Outcome
- Defendant's application dismissed; injunction reinstated; suits to be consolidated.
- Judges
- MJA Emukule
- Legal Topics
- Interlocutory Injunctions, Title to Land, Service of Process, Multiplicity of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philomena Murugi Ngugi
Applicant
Jane Njeri Kamau
Respondent
Procedural Posture
Civil Case / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether the ex parte injunction granted against the Defendant should be discharged due to lack of service and hearing inter partes.
- 2 Whether the Defendant lawfully obtained title to the suit property and is entitled to occupation.
- 3 Whether the existence of multiple suits over the same property necessitates consolidation.
Ratio Decidendi
The court found that although the ex parte injunction had lapsed by operation of law due to lack of inter partes hearing and extension, the Plaintiff raised a serious question regarding the validity of the Defendant's title to the suit property. Given the existence of multiple related suits and the unresolved question of title, the court determined that the matter should proceed to full trial. The Defendant's application to discharge the injunction was dismissed, and the original injunctive orders were reinstated to preserve the status quo. The court also ordered consolidation of the related suits for efficient and expeditious resolution.
Court Disposition
Defendant's application dismissed; injunction reinstated; suits to be consolidated.
Orders
- Defendant's application dated 12th May 2011 is dismissed.
- Orders of injunction granted on 9th November 2010 are reinstated.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. 297 OF 2010
PHILOMENA MURUGI NGUGI...........................................PLAINTIFF/APPLICANT
VERSUS
JANE NJERI KAMAU..................................................DEFENDANT/RESPONDENT
RULING
On 9/11/2010 this court granted an ex parte injunction agains the Defendant restraining her from entering, transfering, charging, wasting or in any other manner howsoever interfering with Parcel No. Naivasha/Mwichiringiri Block 1/2127.
2. In an application dated 12. 05. 2011 the Defendant sought an order to discharge that injunctive order on the grounds inter alia that summons was never served upon her, and that the matter has never been heard inter partes, and that the Defendant has been condemned unheard. As the first application for injunction was never heard inter partes, and the orders were never extended, the injunctive orders expired by effluxion of time. Ex parte orders are valid for only fourteen days. That is the effect of Order 40 rule 4(2), and rule 6 of the Civil Procedure Rules 2010.
3. Notwithstanding the expiration of the injunctive orders, the circumstances in this application, compel this court to consider that matter further. The Defendant has in her Replying Affidavit sworn on 20th February 2013 deponed that she is the registered owner of the suit property having first bought it from one Esther Wangari Mwaura, for valuable consideration, and that she is therefore lawfully in occupation on the suit property and is entitled to such occupation. There is no Further Affidavit in response to the Defendant's said Affidavit. The Plaintiff has however in his Advocates Submissions dated 29th March, 2012, explained in some detail the circumstances under which the property came to be registered in the Defendant's case, and concludes that the seller to the Defendant had no legal title to transfer the property to the Defendant herein.
4. In addition there are cross-suits in this matter, being this suit, as well as Nakuru HCCC No. 158 of 2010 in which the Defendant herein has sued Esther Wangare Mwaura, the Seller of the suit land to the Plaintiff herein. The matter is further complicated by the decision in Nakuru High Court Succession Cause No. 56 of 1995.
5. The principles for grant temporary injunctions in this country are those stated in the case of GIELLA VS. CASSMAN BROWN & CO. LTD [1973] E.A. 358-
(1) that the Plaintiff has established a prima facie case with a probability of success,
(2) that an injunction will not ordinarily be granted where the Plaintiff can be adequately compensated in damages, and
(3) where the court is in doubt the matter be determined on the balance of convenience.
6. These principles were however questioned in the decision of the English House Lords in the case of AMERICAN CYANAMID VS. ETHICON LTD [1975] A.C. 396 where the court held inter alia that -
(1) the grant of interlocutory injunctions for infringements of patents was governed by the same principles as those in other actions,
(2) there was no rule of law that the court was precluded from considering whether, on a balance of convenience an interlocutory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trial of the action,
(3) all that was required was that the court should be satisfied that the claim was not frivolous or vexatious, that is, that there was a serious question to be tried.
7. The Applicant herein has in my view raised a serious question of law whether the Defendant obtained a good title to the suit land. That is a matter for inquiry by the trial Judge. There is also a multiplicity of suits on the same suit land. Counsel on either side need to consider consolidation of these suits.
8. In the premises, I dismiss the Defendant's application dated 12th May 2011, and reinstate the orders of injunction first granted on 9th November 2010.
9. I also direct this suit and Nakuru HCCC No. 158 of 2010, be consolidated and heard together in the interest of expeditous disposal of suits.
10. Costs herein shall be in the cause.
11. There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 28th day of March, 2014
M. J. ANYARA EMUKULE
JUDGE