[2021] KEELC 1433 (KLR)
The court found that the applicant failed to demonstrate a prima facie case or that she would suffer irreparable injury if the injunction was not granted. The court noted that most of the issues raised by the applicant would be addressed at the hearing of the main suit where evidence would be tendered. Consequently,...
Source-derived case information.
- Citation
- [2021] KEELC 1433 (KLR)
- Parties
- Applicant: Salome Njoki Gitau alias Njoki W/o Simon; Respondent: Monicah Wanjiru Gitau; Respondent: District Land Registrar, Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E070 of 2021
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Injunctive Relief, Land Title Disputes, Prima Facie Case, Irreparable Injury, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Njoki Gitau alias Njoki W/o Simon
Applicant
Monicah Wanjiru Gitau
Respondent
District Land Registrar, Nairobi
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff/applicant has met the threshold for grant of a temporary injunction.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case or that she would suffer irreparable injury if the injunction was not granted. The court noted that most of the issues raised by the applicant would be addressed at the hearing of the main suit where evidence would be tendered. Consequently, the application for a temporary injunction lacked merit and was dismissed. Costs were ordered to abide the outcome of the main suit.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed.
- Costs to abide the outcome of the main suit.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. E070 OF 2021
SALOME NJOKI GITAU alias NJOKI W/O SIMON......PLAINTIFF/APPLICANT
- VERSUS -
MONICAH WANJIRU GITAU..............................1ST DEFENDANT/RESPONDENT
DISTRICT LAND REGISTRAR, NAIROBI..........2ND DEFENANT/RESPONDENT
RULING
1. This is the Notice of Motion dated 22nd February 2021 brought under section 1A, 1B, 3A & 63 (e) of the Civil Procedure Act, Order 40 Rules 1-3, order 50 Rule 1 of the Civil Procedure Rules and Articles 35 and 40 of the Constitution.
2. It seeks orders:-
1. Spent.
2. Spent.
3. That pending the hearing and determination of this matter, the Honourable Court be pleased to issue an order of injunction restraining the Defendants whether by themselves, their agents and/or servants from offering for sale, selling, transferring, charging and/or in any manner whatsoever dealing with the parcel of land known as Title Number: Dagoretti/Waithaka/1325.
4. That this honourable court be pleased to order the 2nd Defendant to supply the Plaintiff and/or produce in court the following documents:-
a. A copy of the Green card in respect of Title NO Dagoretti/Waithaka/1325.
b. A copy of the transfer document effecting the transfer of the suit property to the 1st Defendant.
c. A copy of application for Land Control Board Consent in respect to the transfer in (b) above.
d. A copy of the Land Control Board Consent to transfer the suit property to the 1st Defendant.
e. A copy of receipt attesting to payment of stamp duty in respect of transfer of the suit property to 1st Defendant.
5. That costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraphs (e) to (j).
4. There is a supporting affidavit sworn by Salome Njoki Gitau, the Plaintiff/Applicant herein sworn on the 22nd February 2021.
5. The application is opposed. There is a Replying Affidavit sworn by Monica Wanjiru Gitau, the 1st Defendant herein sworn on the 22nd April 2021.
6. On the 19th April 2021, the court with the consent of parties directed that the Notice of Motion be canvassed by way of written submissions.
7. I have considered the notice of motion, the supporting affidavit and the annexures. I have also considered the replying affidavit and the annexures. I have considered the written submissions filed on behalf of the parties. The issues for determination are:-
i. Whether the plaintiff’s/applicant’s application meets the threshold for grant of temporary injunction.
ii. Who should bear costs of this application?
8. In an application for injunction, the onus is on the applicant to satisfy the court that it should grant an injunction. The principles were laid down in the precedent setting case of Giella vs Cassman Brown & Co. Ltd (1973) EA 358. In the case ofMrao Ltd vs First American Bank of Kenya Ltd & 2 Others (2013) KLR 125 the Court of Appeal stated what amounts to a prima facie case. I am guided by the above authorities.
9. It is the Plaintiff’s case that the 1st Defendant has been registered as the owner of LR NO Dagorett/Waithaka/1325. Most of the issues raised by the Plaintiff/Applicant will be addressed at the hearing where the evidence will be tendered.
10. I find that the Plaintiff has failed to demonstrate that she will suffer irreparable injury if these orders are not granted.
11. In conclusion, I find no merit in this application and the same is dismissed. the costs do abide the outcome of the main suit.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI ON THIS 14TH DAY OF OCTOBER 2021
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Gitau for the Plaintiff
Ms Muchira for the 1st Defendant
No appearance for the 2nd Defendant
Steve - Court Assistant