[2011] KEHC 3998 (KLR)

[2011] KEHC 3998 (KLR)

The court found that the plaintiffs, as daughters of the deceased original proprietor, had established a reasonable case with a probability of success for a declaration of trust over the suit property. The court held that damages would not be an adequate remedy given the sensitive nature of land issues in Kenya and...

Source-derived case information.

Citation
[2011] KEHC 3998 (KLR)
Parties
Plaintiff: Phylis Kamicia; Defendant: M’Rugento Mbogori
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
17 February 2011
Case Number
Civil Case 59 of 2005
Procedural Posture
Chamber Summons Application / Interlocutory Injunction Ruling
Outcome
Plaintiffs' application for interlocutory injunction allowed.
Judges
AM Cockar
Legal Topics
Interlocutory Injunctions, Trusts Over Land, Succession Rights, Preservation of Property
Source Language
english
Land and Property Civil Procedure Interlocutory Injunctions Trusts Over Land Succession Rights Preservation of Property

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Summary, issues, holding and outcome

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Parties

Phylis Kamicia

Plaintiff

M’Rugento Mbogori

Defendant

Procedural Posture

Chamber Summons Application / Interlocutory Injunction Ruling

Legal Issues

  1. 1 Whether the plaintiffs have established a prima facie case with a probability of success to warrant the grant of an interlocutory injunction.
  2. 2 Whether damages would be an adequate remedy for the plaintiffs if the injunction is not granted.
  3. 3 Whether the balance of convenience tilts in favour of granting the injunction to preserve the suit property.

Ratio Decidendi

The court found that the plaintiffs, as daughters of the deceased original proprietor, had established a reasonable case with a probability of success for a declaration of trust over the suit property. The court held that damages would not be an adequate remedy given the sensitive nature of land issues in Kenya and the plaintiffs' claim to inheritance. Applying the principles from Giella v Cassman Brown, the court determined that the balance of convenience favoured preserving the property in its current state to prevent further damage pending the hearing and determination of the suit. Consequently, the court granted the interlocutory injunction sought by the plaintiffs.

Court Disposition

Plaintiffs' application for interlocutory injunction allowed.

Orders

  • An order of injunction is issued restraining the 1st defendant by himself, his servants and/or agents from excavating, mining, removing stones, wasting or damaging the ground and soil on LR. No. ABOTHUGUCHI/RUIGA/1012 pending hearing and determination of this suit.
  • The plaintiffs will have the costs of this application.