[2009] KEHC 2892 (KLR)
The court found that the applicant's property had already been sold to a third party, Muita Thirikwa, through a public auction on 30th November 2007. Since the property was no longer with the respondents and the third party was not a party to the application, the court held that granting an injunction would serve no...
Source-derived case information.
- Citation
- [2009] KEHC 2892 (KLR)
- Parties
- Applicant: Waweru Thirikwa; Respondent: M'Nkanata M. Kioga; Respondent: M.M. Kioga Advocates
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 96 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking Injunction
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Injunctions, Execution of Judgments, Pauper Applications, Sale of Land Under Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Waweru Thirikwa
Applicant
M'Nkanata M. Kioga
Respondent
M.M. Kioga Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking Injunction
Legal Issues
- 1 Whether the applicant is entitled to restraining orders (injunction) against the respondents to prevent transfer of land parcel KIIRUA/NAARI-MAITEI/339.
- 2 Whether the respondents rendered legal services to the applicant or were properly instructed.
- 3 Whether the sale of the applicant's land was irregular or in violation of court orders.
Ratio Decidendi
The court found that the applicant's property had already been sold to a third party, Muita Thirikwa, through a public auction on 30th November 2007. Since the property was no longer with the respondents and the third party was not a party to the application, the court held that granting an injunction would serve no purpose and would be in vain. There was no evidence that the property had not been registered in the third party's name or transferred further. The court concluded that the application for an injunction must fail as the relief sought was no longer tenable given the circumstances.
Court Disposition
application dismissed
Orders
- The chamber summons dated 13th January 2009 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Miscellaneous Application 96 of 2008
WAWERU THIRIKWA …………………........…………………… PLAINTIFF
AND
M’NKANATA M. KIOGA ………………………………… 1ST DEFENDANT
M.M. KIOGA ADVOCATES ……………………….…….. 2ND DEFENDANT
RULING
It would appear from the annextures in this matter that the present applicant, Waweru Thirikwa and another person, Joseph Macharia had a dispute with the respondents regarding costs which had been taxed at Kshs. 79,469. 60. By a notice of motion dated 15th June 2004 the applicant applied and this court (Sitati, J) granted an order of stay of execution on certain terms.
Subsequently the respondents also filed a motion seeking the vacation of those stay orders and the Decree Holder to be allowed to complete the execution. That application was allowed by myself, holding that there was no evidence that the conditions upon which the stay was granted were complied with. In both applications the applicant had counsel.
In the present claim the applicant suing as a pauper states that following the orders vacating the stay, the respondents have sold his land and he is aggrieved. That the sale was irregular and further that execution ought to have been levied against his colleague – Joseph Macharia.
The applicant has filed chamber summons dated 13th January 2009 to which this ruling relates. He seeks in that application restraining orders against the respondents to stop them from transferring parcel of land No. KIIRUA/NAARI-MAITEI/339.
The application is premised on the grounds that the respondents did not render any legal service to the applicant as the latter never instructed them. That the respondents did not disclose to the court that indeed the conditions for stay were fulfilled by the applicant depositing the funds as ordered. He has also deposed that he was surprised to see his property advertised for sale yet he had no notice that the orders of stay had been lifted. That eventually the land was sold to one Muita Thirikwa.
The respondents despite service did not reply or attend court on the hearing date. The orders sought in this application being in the nature of an injunction will only issue if it is demonstrated that there is a prima facie case with a probability of success and further if it is shown that if the orders sought are not granted the applicant may suffer an injury which is not capable of being compensated by an award of damages. Finally, should there be doubt the application ought to be decided on a balance of convenience. See Giella V. Cassman Brown E.A. L.R. 1973 Page 358.
The applicant has led evidence by way of averment and annextures that the suit property was sold on 30th November 2007 to one Muita Thirikwa through a public auction. If that be so, then the suit property is no longer with the respondents hence they cannot be restrained. The said Muita Thirikwa is not a party to this application. Furthermore an injunction will serve no purpose and will indeed be in vain considering that the property has been disposed of to a third party and there is no evidence that it has not been registered in his name or even transferred further. The certificate of official search relates to 2002 when there was both an order of prohibition and a caution.
For these reasons, this application must fail and is dismissed. I make no orders as to costs.
Dated and delivered at Meru this 29th day of May 2009.
W. OUKO
JUDGE