[2005] KEHC 686 (KLR)
The court found that the 1st defendant is the registered proprietor of the suit premises, but it was not denied that the applicant uses one of the properties as his architectural office and library and has access to it. The court considered the relationship between the parties, the evidence presented, and the need...
Source-derived case information.
- Citation
- [2005] KEHC 686 (KLR)
- Parties
- Applicant: V J; Defendant: P N N; Defendant: O K J
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1299 of 2004
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed in part.
- Judges
- PJ Ransley
- Legal Topics
- Interlocutory Injunctions, Ownership of Land, Trusts in Property, Quiet Possession, Access to Children, Domestic Relationships
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
V J
Applicant
P N N
Defendant
O K J
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the defendants from harassing or physically harming him.
- 2 Whether the applicant should be restrained from being evicted or having his quiet possession of the suit properties interfered with.
- 3 Whether the applicant is entitled to access to his two daughters pending determination of the suit.
Ratio Decidendi
The court found that the 1st defendant is the registered proprietor of the suit premises, but it was not denied that the applicant uses one of the properties as his architectural office and library and has access to it. The court considered the relationship between the parties, the evidence presented, and the need to preserve the status quo. The applicant was found to have established a sufficient basis for limited injunctive relief to prevent harassment and interference with his use of the property and to ensure access to his daughters, pending the hearing and determination of the main suit. The court thus granted the application in part, allowing the prayers for restraint against...
Court Disposition
Application allowed in part.
Orders
- Defendants are restrained from harassing, threatening, beating, lynching, or physically harming the applicant until determination of the suit.
- Defendants are restrained from evicting or interfering with the applicant's quiet possession and occupation of LR NO. NAIROBI BLOCK [Particulars Withheld] until determination of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE 1299 OF 2004
V J...................................................................APPLICANT
VERSUS
P N N.....................................................1ST DEFENDANT
O K J.....................................................2ND DEFENDANT
RULING
The plaintiff by way of this Chamber Summons expressed to be brought under Order XXXIX Rule 1 and 2 of the Civil Procedure Rules and Section 3A and 5 of the Civil Procedure Act seeks Order:-
“3” That the Defendants be restrained from harassing threatening, beating lynching or in way physically harming him and
“4” That the Defendants jointly and severally be restrained from evicting or in any way interfering with the plaintiffs quiet possession and occupation and parcels of land NOS. LR NAIROBI/BLOCK[Particulars Withheld] and LR NAIROBI/BLOCK[Particulars Withheld]until the determination of this suit
“5” That the Defendants be restrained from letting or selling or interfering with the above named suit properties and
“6” That the plaintiff be accorded access to his two daughters namely L V and K V.
The application is premised on the ground that the defendants have threatened to injure the plaintiff, and that they have prevented the plaintiff from access to the suit property which he uses for his business and where he keeps his collections of architectural drawings. The application is supported by a sworn affidavit in which the plaintiff has avers that the 1st respondent has denied the applicant access to the suit premises that although they are registered in the name of the 1st respondent he had purchased them with his own money and later transferred them to the 1st respondent as a trustee.
The application is opposed by the respondents who have filed replying affidavit in which they aver that the 1st Defendant is the registered proprietor of the parcels of land comprised in LR NAIROBI BLOCK[Particulars Withheld] and LR NAIROBI BLOCK [Particulars Withheld].She has annexed copies of title certificates, that the plaintiff is not denied access to the two named children, that the plaintiff has not been denied access to the suit premises, and lastly that the applicant is not denied access to his daughters.
Mr. Mugo for the applicant submitted that the suit property belongs to the applicant but was registered in the name of the respondent as a trustee and that if injunction is not granted the applicant will suffer irreparable damage. Mr. Ogweno for the respondent submitted that the applicant has not satisfied the conditions for grant of an interlocutory injunction which are: existence of probability of success, likelihood of irreparable harm which would not be compensated for by damages and balance of convenience.
These the applicant has not satisfied. The two parcels of land LR NO. NAIROBI BLOCK [Particulars Withheld] and LR NO. NAIROBI BLOCK [Particulars Withheld]are the property of the 1st respondent who is the registered proprietor and further that the applicant has not been denied access to the said property.
From the exhibits annexed to this application it is clear that the 1st defendant is the registered proprietor of the suit premises. It is also not denied that the applicant is using LR NO. NAIROBI BLOCK [Particulars Withheld]as his architectural office and library and where he stores the tools of his profession as well as architectural drawings. In her statement of defence and also in the replying affidavit sworn by the 1st defendant it is averred that the plaintiff has access to LR NO. NAIROBI BLOCK [Particulars Withheld]and he has all the keys to premises.
This dispute involves a man and a woman who have lived together for the last 17 years. They have two issues of the relationship although their marital status are not clear. The second defendant is the son of the applicant from another woman but who had come to stay and he is staying with them. The 1st defendant in her affidavit has denied that the plaintiff is denied access to the suit premises nor access to their two daughters. In the circumstances fair and just orders would be as follows. The plaintiff’s application is allowed in terms of Prayer 3, Prayer 4 limited to LR NO. NAIROBI BLOCK [Particulars Withheld]and Prayer 5 limited to LR NO. NAIROBI BLOCK [Particulars Withheld]until this suit is heard and determined.
Those are the orders of this court.
Dated and delivered this 15th day of July 2005.
P.J. RANSLEY
JUDGE