Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 25th September 2017 (suit filed in 1980, Civil Suit No.1200 of 1980 referred to)· [2018] KEELC 693 (KLR)

Richard Kariuki Kamwenji v Teresia Waithira Kariuki [2018] KEELC 693 (KLR)

High Court of Kenya
23 November 2018
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The High Court threw out a 2017 attempt to block development on Kiambu land, warning that applications filed just to delay decades-old suits will cost you.

What this practically means

#

Executive summary

#
This ruling of the High Court at Thika (L. Gacheru J) determined a Notice of Motion dated 25th September 2017 by Richard Kariuki Kamwenji, the Plaintiff, seeking a temporary injunction against Teresiah Waithira Kariuki, administratrix of the estate of Zakaria Kimuhu, restraining her from entering, trespassing on, erecting buildings on or dealing with land parcel No. Ndumberi/Ndumberi/738, plus costs. The application was brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1. The Plaintiff claimed he bought 2 acres from Zakaria Kimuhu in 1980, obtained a decree on 22nd May 1980 directing transfer, and that the Respondent had encroached on and was developing the land. The Respondent opposed, showing that the 1980 judgment was reviewed and vacated by Justice H. G. Platt on 28th February 1983, the Green Card entry in the Plaintiff's favour was vacated on 29th April 1986 reinstating Zakaria Kimuhu & Others, the land is co-owned by the late husband and his brothers, and the Plaintiff's interest is protected by a Caution. The court held that the Plaintiff is not the registered owner, that his caution already protects his alleged interest, and that the application, filed only after reconstruction of the misplaced court file which the Plaintiff had opposed, was an abuse of process and frivolous. The application was dismissed entirely with costs to the Respondent, with directions for filing of pleadings, compliance with Order 11, and a pre-trial conference for expeditious disposal of the 1980 suit.

Key legal issues

#
01

Entitlement to a temporary injunction over land parcel No. Ndumberi/Ndumberi/738

Holding

The application for a temporary injunction was not merited and was dismissed.

Reasoning

The Applicant relied on a judgment of 22nd May 1980 directing transfer of 2 acres to him, but that judgment was reviewed and vacated on 28th February 1983 by Justice H. G. Platt, and the Green Card entry in his favour was vacated on 29th April 1986, reinstating Zakaria Kimuhu & Others as proprietors. The Applicant is not the registered owner, his alleged interest is protected by a Caution, and the injunction would serve only to delay the expeditious disposal of a suit filed in 1980.

p. 3
02

Abuse of court process

Holding

The application was found to be an abuse of the court process and frivolous, contrary to the overriding objective in Sections 1A and 1B of the Civil Procedure Act.

Reasoning

The Applicant had not sought temporary injunction orders before the court file was reconstructed, and had in fact opposed the reconstruction. He only moved for injunctive relief after the file was reconstructed, which suggested the application was intended to delay the hearing of a suit filed in 1980 rather than preserve any legitimate interest, and thus offended the expeditious-resolution objectives of the Civil Procedure Act.

p. 2

Legal principles established

#
  • A temporary injunction is issued when the suit property is in danger of being wasted, damaged or alienated, as provided under Order 40 Rule 1 of the Civil Procedure Rules
  • The purpose of a temporary injunction is to preserve the status quo

Court orders

#
  1. 1.The Notice of Motion application dated 25th September 2017 is dismissed entirely with costs to the Defendant/Respondent
  2. 2.The Defendant/Respondent is directed to file all the available pleadings within 14 days from the date of the order
  3. 3.The parties to prepare the suit for hearing expeditiously by complying with Order 11 within 30 days after the filing of the relevant copies of pleadings
  4. 4.A date for Pre-trial Conference to be taken before the Deputy Registrar for expeditious disposal of the suit

Authorities

#

Legislation

  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 1A
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 1B
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 3A
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 63(e)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Noormohammed Janmohammed Vs Kassam Ali Virji Madham
    (1953) 20 LRK 8
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21 Laws of Kenya), Order 51 Rule 1

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Richard Kariuki Kamwenji v Teresia Waithira Kariuki [2018] KEELC 693 (KLR)", Case Analysis (2018). Notice of Motion dated 25th September 2017 (suit filed in 1980, Civil Suit No.1200 of 1980 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/693/eng@2018-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.