[2011] KEHC 1053 (KLR)
The court found that since the suit property is registered in the Plaintiff/Respondent's name, the Defendants/Applicants could not establish a prima facie case for an injunction based on ownership. However, the Defendants/Applicants have been in occupation of the property as their family home since 1986, and their...
Source-derived case information.
- Citation
- [2011] KEHC 1053 (KLR)
- Parties
- Plaintiff: Teresiah Wambui Wairegi; Defendant: Maina Mwaura; Defendant: Margaret Kigio Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2261 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- injunction granted in favour of the Defendants/Applicants; costs in the cause
- Judges
- P Nyamweya
- Legal Topics
- Injunctive Relief, Ownership Dispute, Registration of Title, Occupation and Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresiah Wambui Wairegi
Plaintiff
Maina Mwaura
Defendant
Margaret Kigio Maina
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Defendants/Applicants are entitled to an injunctive order restraining the Plaintiff/Respondent from dealing with the suit property pending determination of the suit.
- 2 Whether the Defendants/Applicants have established a prima facie case for grant of an injunction.
- 3 Whether the balance of convenience favours the grant of an injunction to the Defendants/Applicants.
Ratio Decidendi
The court found that since the suit property is registered in the Plaintiff/Respondent's name, the Defendants/Applicants could not establish a prima facie case for an injunction based on ownership. However, the Defendants/Applicants have been in occupation of the property as their family home since 1986, and their evidence of occupation was uncontroverted. The court determined that the balance of convenience favoured the Defendants/Applicants, as they would suffer greater prejudice if the injunction was not granted. Accordingly, the court granted an injunction restraining the Plaintiff/Respondent from dealing with the suit property pending determination of the suit, with costs in the cause.
Court Disposition
injunction granted in favour of the Defendants/Applicants; costs in the cause
Orders
- An injunction is granted restraining the Plaintiff/Respondent from all dealings whatsoever involving land parcel RUIRU/RUIRU/EASTBLOCK 2/5277 pending determination of the suit.
- Costs of the application shall be costs in the cause.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
LAND AND ENVIRONMENTAL DIVISION
CIVIL SUIT NO. ELC 2261 OF 2007
TERESIAH WAMBUI WAIREGI...........................................PLAINTIFF
VERSUS
MAINA MWAURA..........................................................1st DEFENDANT
MARGARET KIGIO MAINA...........................................2nd DEFENDANT
RULING
The application dated 25th July 2011 is seeking an injunctive order to restrict the Plaintiff/Respondent from all dealings whatsoever involving the land parcel registered as RUIRU/RUIRU/EASTBLOCK 2/5277, hereinafter referred to as the suit property. The 2nd Defendant/Applicant avers that she has been the de facto owner of suit property, and has continually enjoyed peaceful occupation of the suit property with her family since the year 1986. The 2nd Defendant/Applicant further avers that she has since discovered that the suit property was fraudulently registered in the name of the Plaintiff/Respondent, and that there is a danger of the suit property being sold to third party buyers.
The Plaintiff/Respondent is the registered owner of the suit property and has not responded to or opposed the said application. The Plaintiff/Respondent in her Plaint filed on 8th November 2007 states that the Defendants/Applicants have without her consent entered into and erected some structures on the suit property. The Plaintiff further states that the Defendants/Applicants have jointly placed a caution in the Thika lands registry claiming a purchasers interest. The Plaintiff denies ever having entered into a sale agreement with the Defendants/Applicants and that their entry into the suit property is without her consent. There is also evidence that the Plaintiff/Respondent has filed an application at the Thika Chief Magistrate’s Court to evict the Defendants/Respondents from the suit property.
I have read and carefully considered the pleadings and evidence by the respective parties to this application. Given that the ownership of the suit property is what is in dispute, and the suit property is already registered in the Plaintiff/Respondent’s name, I cannot make a finding of a prima facie case in favour of the Defendants/Applicants according to the principles set out in Giella vs Cassman Brown & Co Ltd (1973) EA 358. Consequently, I can only decide the Defendants/Applicants’ application on the basis of a balance of convenience. The Defendants/Respondents are the parties in occupation and have made the suit property their family home. The Defendants/Respondents evidence in this regard was not controverted and is hereby accepted. The Defendants/Respondents are the ones who stand to be more prejudiced if the orders sought are not granted. For this reason I grant an injunction in terms of prayer 2 of the application dated 25th July 2011. The costs of the application shall be costs in the cause.
Dated, signed and delivered in open court at Nairobi this 3rd day of November, 2011.
P. NYAMWEYA
JUDGE