[2013] KEHC 2357 (KLR)
The court found that the application was unopposed and that the plaintiffs had demonstrated sufficient grounds for the grant of an inhibition order to preserve L.R. No. NTIMA/IGOKI/5569 pending the hearing and determination of the suit. The court declined to grant the prayer compelling the defendant to offer...
Source-derived case information.
- Citation
- [2013] KEHC 2357 (KLR)
- Parties
- Plaintiff: Susan Gatiria M'Mukira; Plaintiff: Catherene Makandi Mutwiri; Plaintiff: David Mutuma M'Iringi; Plaintiff: Edith Kairuth; Plaintiff: Doreen Mukuba; Defendant: Beatrice Kuri Francis
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 164 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application partially allowed; prayers 4, 5, and 7 granted.
- Judges
- FM Njoroge
- Legal Topics
- Injunctive Relief, Land Title Inhibition, Secured Transactions, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Gatiria M'Mukira
Plaintiff
Catherene Makandi Mutwiri
Plaintiff
David Mutuma M'Iringi
Plaintiff
Edith Kairuth
Plaintiff
Doreen Mukuba
Plaintiff
Beatrice Kuri Francis
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an inhibition order restraining dealings over L.R. No. NTIMA/IGOKI/5569 pending determination of the suit.
- 2 Whether the defendant should be compelled to liquidate the Kshs.4,000,000 loan secured by a charge over the suit property.
- 3 Whether the defendant should be compelled to offer alternative security for the loan to discharge the suit property.
Ratio Decidendi
The court found that the application was unopposed and that the plaintiffs had demonstrated sufficient grounds for the grant of an inhibition order to preserve L.R. No. NTIMA/IGOKI/5569 pending the hearing and determination of the suit. The court declined to grant the prayer compelling the defendant to offer alternative security due to lack of evidence regarding the defendant's ability to do so. The court also found it appropriate to grant the order compelling the defendant to liquidate the Kshs.4,000,000 loan as mutually agreed with the financier, Ecobank Kenya Limited, despite the financier not being a party to the suit. Costs were awarded to the applicants as the application was not...
Court Disposition
Application partially allowed; prayers 4, 5, and 7 granted.
Orders
- An inhibition is issued, inhibiting registration of any dealings over L.R. No. NTIMA/IGOKI/5569 pending hearing and determination of the suit or until further court orders.
- The defendant is compelled to liquidate the Kshs.4,000,000 loan as mutually agreed between the defendant and Ecobank Kenya Limited, secured by a charge registered over L.R. No. NTIMA/IGOKI/5569 on 28.03.2013.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ELC CASE NO. 164 OF 2013
SUSAN GATIRIA M'MUKIRA..............................................................1ST PLAINTIFF
CATHERENE MAKANDI MUTWIRI...................................................2ND PLAINTIFF
DAVID MUTUMA M'IRINGO...............................................................3RD PLAINTIFF
EDITH KAIRUTH...................................................................................4TH PLAINTIFF
DOREEN MUKUBA...............................................................................5TH PLAINTIFF
VERSUS
BEATRICE KURI FRANCIS......................................................................DEFENDANT
R U L I N G
The application herein is dated 26th June, 2013. The Orders are:
It seeks orders 1, 2, 3, 4, 5, 6 and 7. Orders 1 to 3 are spent. The Orders sought are:
THATthe application be certified urgent and it be herd ex-parte in the first instance.
THATpending inter-partes hearing of the application, an inhibition be issued, inhibiting registration of any dealings over L. R. No. NTIMA/IGOKI/ 5569.
THATpending inter partes hearing of the application, an order be issued compelling the defendant/respondent to be liquidating the Khs.4,000,000/= loan, secured through a charge registered against L. R. No. NTIMA/IGOKI/5569 on 28. 03. 2013, in favour of the financier, ECOBANK KENYA LIMITED.
THATpending hearing and determination of the suit or until further orders of the court, an inhibition be issued, inhibiting registration of any dealings over L. R. No. NTIMA/IGOKI/5569.
THATpending hearing and determination of the suit or until further court orders, an order be issued compelling the defendant/respondent to liquidate the Kshs.4,000,000/= loan as mutually agreed between the defendant/respondent & and the financier. ECOBANK KENYA LIMITED, secured by a charge registered over L. R. No.NTIMA/IGOKI/ 5569 on 28. 03. 2013.
THATin the alternative to prayer 5 above, an order be issued compelling the defendant/respondent to offer an alternative security for the Khs.4,000,000/= loan advanced to her by ECOBANK KENYA LIMITED, in order to discharge L. R. NTIMA/IGOKI/ 5569, pending hearing and determination of th sit or until court orders.
THATcosts be the application be provided.
During inter partes hearing, the advocate for the applicant satisfied the Court that the Defendant/Respondent had been duly served but failed to be present during the hearing. Nevertheless, the hearing took place.
The advocate stated that he was relying on the grounds on the face of the Notice of Motion and the apposite averments. As the application was not opposed, he urged the Court to grant prayers 4, 5, 6, and 7 in the application.
I find that the application is not opposed. I find prayers 5 and 6 t be difficult to implement. Prayer 6 is especially difficult to implement as no evidence was tendered to show that the respondent was in a position to offer alternative security. Although Ecobank Kenya Limited is not enjoined in the suit, I will grant prayers 4 and 5.
In the circumstances, I grant prayers 4, 5, and 7 in the application dated 26th June, 2013.
Dated, Signed and Delivered in Open Court this 9th day of July, 2013 in the presence of :
Carl Peters Mbaabu for plaintiff
Defendant – Absent
P. M. NJOROGE
JUDGE