[2007] KEHC 1421 (KLR)
The court found that the plaintiffs had demonstrated a genuine apprehension of eviction from the suit premises, as the defendant had offered leases with increased rents instead of proceeding with the sale as initially contemplated. The defendant's failure to file a replying affidavit or grounds of opposition left...
Source-derived case information.
- Citation
- [2007] KEHC 1421 (KLR)
- Parties
- Plaintiff: Salim Awadh & 34 Others; Defendant: The Registered Trustee of Teleposta Pension Scheme
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 739 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- injunction granted pending determination of main suit
- Legal Topics
- Injunctions, Eviction Proceedings, Property Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Awadh & 34 Others
Plaintiff
The Registered Trustee of Teleposta Pension Scheme
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to an injunction restraining the defendant from selling or evicting them from the suit premises pending determination of the main suit.
- 2 Whether the plaintiffs have demonstrated apprehension of eviction justifying the grant of an injunction.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a genuine apprehension of eviction from the suit premises, as the defendant had offered leases with increased rents instead of proceeding with the sale as initially contemplated. The defendant's failure to file a replying affidavit or grounds of opposition left the plaintiffs' claims uncontroverted. Given the likelihood of irreparable harm and the need to preserve the status quo pending the determination of the main suit, the court held that an injunction was warranted. The injunction was granted to restrain the defendant from selling the houses or evicting the plaintiffs until the main suit is determined, with costs awarded to the...
Court Disposition
injunction granted pending determination of main suit
Orders
- An injunction is hereby issued restraining the defendant from selling the respective houses or evicting the plaintiffs from the premises until determination of the main suit.
- If any plaintiffs are evicted, they are to be reinstated to the premises.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 739 of 2007
SALIM AWADH & 34 OTHERS..............................................................................……………PLAINTIFF
VERSUS
THE REGISTERED TRUSTEE OF TELEPOSTA PENSION SCHEME.....................DEFENDANTS
RULING
Land and Environmental Law Division
2. Subject of main suit:- Property ownership
i) Representative suit
ii) Plaintiffs applicant members of the Teleposta Pension Scheme
iii) Intention for scheme to sell house
BUT Lease agreement entered into for increase of rent
iv) Fear that they may lose purchase of their rental houses from respondent
v) Other suits filed before the constitution court – which were dismissed/struck out as not being constitution issues.
Wendoh J 5 March 2007
Emukule 2 February 2007
3. Application dated 25 October 2007.
i) Injunction to restrain defendant respondent from selling respective house and or evicting the plaintiffs from premises.
ii) As a precaution – if any are evicted to be reinstated.
4. Held:
i) Injunction to issue as prayed
ii) Likelihood of fear and apprehension of being entered grounds to issue injunction.
5. Case law - related files.
Hccc 1012/05
Hccc 968/05
6. Advocates
R.F. Kimathi holding brief for Letangula & Co. Advocates for the plaintiff/applicant – present
G.K. Bundotich & Co. Advocates for the defendant/respondent- present
I: Injunction application
1. This is a representative suit. All the plaintiff are said to be members of Teleposta Pension Scheme. They reside in houses that are offered to them for sale on priority basis. The defendants instead proceeded to offer lease with increased rents as a pre- condition in being offered the houses for sale.
2. The applicant filed suit before the constitution Bench of the High Court of Kenya
irobi. Their cases were struck out (by Wendoh J on 5 March 2007 and Emukulle J on 2 February 2007) on grounds that the matters were in the realm of private law (Hccc969/06) (Hccc 1012/05).
3. They now come to this court by way of plaint filed on 25 October 2007 seeking prayers of specific performance of the sale agreement and of an injunction restraining the defendants from evicting them from the suit premises.
4. They have apprehension that they may be evicted from the premises.
5. The respondent in advertedly failed to file a replying affidavit to the application on grounds of opposition.
II: Finding
6. That an injunction be hereby issued till the determination of the main suit. There be costs to the applicants to be paid by the respondent.
Dated this 3rd day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
R.F. Kimathi holding brief for Letangula & Co. Advocates for the plaintiff/applicant – present
G.K. Bundotich & Co. Advocates for the defendant/respondent -present