[2010] KEHC 2465 (KLR)
The court found that the appellant had established a prima facie case with a probability of success, warranting the preservation of the status quo pending the determination of the appeal. The court granted a temporary injunction restraining the respondents and their agents from entering, passing over, or interfering...
Source-derived case information.
- Citation
- [2010] KEHC 2465 (KLR)
- Parties
- Appellant: Stanley Mwangi Wamae; Respondent: Charles Ngatia Kamau; Respondent: John Muchangi Njoroge; Respondent: Charles Kamau Nyaga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 262 of 2009
- Procedural Posture
- Civil Appeal / Interlocutory Application for Temporary Injunction Pending Appeal
- Outcome
- temporary injunction granted in modified terms pending appeal
- Legal Topics
- Interlocutory Injunctions, Stay Pending Appeal, Proprietary Rights, Public Rights of Way
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Mwangi Wamae
Appellant
Charles Ngatia Kamau
Respondent
John Muchangi Njoroge
Respondent
Charles Kamau Nyaga
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Temporary Injunction Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a temporary injunction pending appeal to prevent the respondents from entering or interfering with the disputed land.
- 2 Whether the existence of a public road or water pipes on the land affects the grant of injunctive relief.
- 3 Whether the appeal has a prima facie chance of success justifying the preservation of the status quo.
Ratio Decidendi
The court found that the appellant had established a prima facie case with a probability of success, warranting the preservation of the status quo pending the determination of the appeal. The court granted a temporary injunction restraining the respondents and their agents from entering, passing over, or interfering with the disputed land. However, the court ordered that any water pipes already laid across the land should remain intact and not be interfered with by either party until the appeal is heard and determined. The court emphasized that no definitive findings were made at this stage to avoid prejudicing the appeal.
Court Disposition
temporary injunction granted in modified terms pending appeal
Orders
- Respondents, their servants and/or agents are restrained from entering, passing over, or doing anything on the disputed piece of land pending the hearing and determination of the appeal.
- Any water pipes already laid across the disputed land shall remain intact and shall not be interfered with by either party until the appeal is heard and determined.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Appeal 262 of 2009
STANLEYMWANGI WAMAE……………..…..APPELLANT
VERSUS
CHARLES NGATIA KAMAU…………….1ST RESPONDENT
JOHN MUCHANGI NJOROGE………….2ND RESPONDENT
CHARLES KAMAU NYAGA…………..…3RD RESPONDENT
RULING
This is an application under Order 41 Rule 4(6) of the Civil Procedure Rules for a temporary injunction pending appeal.It is based on the ground that the appellant being the registered proprietor of the suit land, his appeal has overwhelming chances of success and that unless the injunction sought is granted the suit property will be wasted or even alienated thus rendering the appeal nugatory.
In the affidavit in support of the application, in addition to adumbrating the above grounds, the appellant deposed that though the learned trial magistrate found that there is no road of access through the appellant’s land, he dismissed his application and the entire suit (Nyahururu PMCC No.297 of 2009) on the ground that he had no jurisdiction to entertain it. If the injunction sought is not granted, the respondents will create a public road through his land which will be difficult to seal if the appeal is allowed as the members of the public will have been used to it.
Opposing the application, John Muchangi Njoroge, the 2nd respondent, deposed in his replying affidavit that this application is bad in law; that the appellant is guilty of laches having done nothing to close the public road which has existed on the disputed piece of land since 1967; that there is nothing to stay as the application has been overtaken by events; that immediately after the appellant’s suit was dismissed the community laid down water pipes through the disputed piece of land; that the appellant will not suffer any prejudice as the respondents will remove the water pipes if the appeal is dismissed and that appeals take long to be determined hence if the injunction sought is granted it will cause great prejudice to the community.
In the supplementary affidavit of Charles Ngatia Kamau, the 2nd respondent it is admitted that though on the ground there is a public road between Plot Nos. 400 and 401 the same is not reflected on the Registry Index Map (RIM) for the area.
Counsel for the parties submitted on these averments.
As this is an interlocutory application, I do not wish and I am at any rate not supposed to make any definitive findings on the matter at this stage lest I prejudice the hearing of the appeal. However, having considered the matter, I find that the appellant has made out a prima facie case with a probability of success.I therefore grant a temporary injunction but not as sought.I order that pending the hearing and final determination of this appeal, the respondents by themselves, their servants and/or agents are hereby restrained from entering the disputed piece of land, passing over it or doing anything on it.If the respondents or the community has indeed laid water pipes across the disputed piece of land as claimed, I order that the same be left intact until this appeal is heard and determined.That means that the appellant should not uproot or in anyway interfere with those water pipes until this appeal is heard and determined.
The costs of this application shall be costs in the appeal.
DATED and DELIVERED this 31st day of March, 2010.
D. K MARAGA
JUDGE.