[2016] KEHC 4476 (KLR)
The court found that the plaintiff did not meet the threshold for the grant of a temporary injunction as set out in Giella v Cassman Brown & Co Ltd. The evidence at this ex parte stage did not establish a sufficient basis for restraining the defendant from dealing with the property or evicting the plaintiff....
Source-derived case information.
- Citation
- [2016] KEHC 4476 (KLR)
- Parties
- Plaintiff: Samson Mbaabu Nkarichia; Defendant: Sacinta Kinya Gituma
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Originating Summons 37 of 2016
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- Plaintiff's application for injunction dismissed; application for inhibition granted.
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Mbaabu Nkarichia
Plaintiff
Sacinta Kinya Gituma
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from evicting or interfering with his occupation of the suit land pending determination of the suit.
- 2 Whether an order of inhibition should be granted to prevent registration of any dealings with the suit property pending determination of the suit.
Ratio Decidendi
The court found that the plaintiff did not meet the threshold for the grant of a temporary injunction as set out in Giella v Cassman Brown & Co Ltd. The evidence at this ex parte stage did not establish a sufficient basis for restraining the defendant from dealing with the property or evicting the plaintiff. However, to preserve the subject matter of the suit and prevent any dealings that could prejudice the parties' positions, the court granted an order of inhibition against registration of any dealings with the suit property pending determination of the suit. Both parties were directed to comply with pre-trial procedures under Order 11 of the Civil Procedure Rules within specified...
Court Disposition
Plaintiff's application for injunction dismissed; application for inhibition granted.
Orders
- Prayer for temporary injunction is denied and dismissed.
- Order of inhibition against registration of any dealings with the suit property is granted pending determination of the suit.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ORIGINATING SUMMONS NO. 37 OF 2016 (OS)
IN THE MATTER OF LAND PARCEL NO. ABOTHUGUCHI/GAITU/2897
REGISTERED IN THE NAMES OF SACINTA KINYA GITUMA
SAMSON MBAABU NKARICHIA...................................................................PLAINTIFF
VERSUS
SACINTA KINYA GITUMA................................................................................DEFENDANT
R U L I N G
This application is dated 22/04/2016 and seeks orders:-
THAT this application be certified urgent and be heard ex-parte in the first instance on account of its urgency.
THAT this Honourble Court be pleased to grant an order of temporary injunction restraining the Defendant/Respondent by herself , her agents, employees ,assigns and/or servants and/or any person acting on her behest from evicting or interfering with the Applicant's quiet user and occupation of parcel No. ABOTHUGUCHI/GAITU/2897 Pending the hearing and determination of this application or further orders of this Court.
THAT this Honourable Court be pleased to grant an order of temporary injunction restraining the Defendant/Respondent by herself , her agents, employees, assigns and/or servants and/or any person acting on her behest from evicting or interfering with the Applicant's quietuser and occupation ofparcel No. ABOTHUGUCHI/GAITU/2897 pending the hearing and determination of this suit.
THAT this Honourable Court be pleased to grant an order of inhibition, against registration of any dealings with the proprietorship interest in parcel No. ABOTHUGUCHI/GAITU/2897 pending the hearing of this application interpartes or further orders of this Court.
THAT this Honourable Court be pleased to grant an order of inhibition, against registration of any dealings with the proprietorship interest in parcel No. ABOTHUGUCHI/GAITU/2897 pending the hearing and determination of this suit.
THAT the cost of this application be borne by the Defendant/Respondent.
It is buttressed by the Affidavit of SAMSON MBAABU NKARICHIA and has the following grounds:-
THAT the Plaintiff/Applicant is about to be evicted from all that parcel known as ABOTHUGUCHI/GAITU/2897 by the defendants effectively rendering this suit nugatory.
THAT the Plaintiff/ Applicant has been in exclusive , open and uninterrupted occupation of 0. 44 Ha of land Parcel now known as No. ABOTHUGUCHI/GAITU/2897 since the year 1992 hence developed a beneficial interest thereto under the doctrine of adverse possession.
THAT any interference with his possession shall occasion him irreparable loss and damages.
THAT the Plaintiff/Applicant has made developments on the suit land.
THAT it is only fair, just and equitable to preserve the suit land to enable the applicant herein to ventilate his cause.
During Interpartes hearing, the Plaintiff's Advocate told the Court that he had bought the suit land from the Defendant's son in 1992 . The Defendant denied knowledge of the sale of land.
I have carefully considered the facts of this case as proffered at this exparte stage. I issue the following orders:-
The prayer for Injunction as contained in prayer 3 of the application is denied and, therefore, dismissed.
Prayer 5 for inhibition is granted
The Plaintiff should fully comply with order 11, CPR, within 30 days of today.
The Defendant should fully comply with Order 11, CPR, within 30 days after expiry of the period stipulated for compliance by the Plaintiff.
Directions on 13/07/2016.
it is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 12TH DAY OF MAY, 2016 IN THE PRESENCE OF:-
CC: Lilian/Daniel
Mrs. Mwanzia for Plaintiff/Applicant
Carlpeters Mbaabu present for Defendant/ Respondent
P.M. NJOROGE
JUDGE