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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 18th April, 2018)· [2018] KEELC 3646 (KLR)

Ginson Kiragu Mberia v Stanley Bundi Rimberia [2018] KEELC 3646 (KLR)

High Court of Kenya
24 April 2018
PNP. M. Njoroge
941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Chuka blocked the defendant from evicting or interfering with a long-time land occupier until the ownership dispute is fully decided.

What this practically means

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Executive summary

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The applicant, Ginson Kiragu Mberia, moved the High Court at Chuka by a Notice of Motion dated 18th April 2018 under Order 40 of the Civil Procedure Rules, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution. He sought certification as urgent, inhibition orders over land parcel No. Mwimbi/Murugi/180, interlocutory injunctions restraining the respondent from evicting, disposing of, fencing or otherwise interfering with his occupation, and an order empowering the OCS Chogoria Police Station to ensure compliance. In his supporting affidavit he claimed occupation and development of the land since the 1970s, referred to a prior determination in HCC No. 30 of 1987 that the land was trust land, and alleged a recent violent raid by the defendant including arson of his son's house, criminal charges pending in Chuka, death threats, and apprehension of an imminent sale and eviction. At the inter-parties hearing on 24.4.2018 the plaintiff's counsel, Miss Kiome, reported that the defendant's advocate, Mr. Mokua, had no instructions from a client in jail, and that the parties had agreed prayer C could be granted; the application was unopposed. Justice P. M. Njoroge held that granting prayer C effectively disposed of the application and, because it was unopposed, allowed the application in its entirety. Prayer (a) was declined as spent; prayer (d), the interlocutory injunction pending the hearing and determination of the suit, was granted, with the OCS Chogoria empowered to ensure compliance. Costs were ordered in the cause, and directions were set for 14.5.2018.

Key legal issues

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01

Whether an interlocutory injunction should issue over the suit property pending the main suit

Holding

An interlocutory injunction in the terms of prayer (d) was granted restraining interference with the applicant's user, occupation and possession of land parcel No. Mwimbi/Murugi/180 pending the hearing and determination of the suit.

Reasoning

The application was brought under Order 40 CPR. It was unopposed: the applicant deponed to occupation since the 1970s, alleged destruction of property, arson, criminal proceedings against the defendant, threats, and apprehension of imminent sale and eviction. The respondent's advocate had no instructions from a client in jail and agreed to prayer C. The court, treating the grant as effectively disposing of the application, allowed the application in its entirety.

p. 2

Legal principles established

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  • Where an interlocutory application is unopposed and the grant of one prayer effectively disposes of the application, the court may allow the application in its entirety so that the parties can pursue the main suit.

Court orders

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  1. 1.Prayer (a) not granted as it was spent
  2. 2.Prayer (d) granted: interlocutory injunction restraining the respondents, their servants, agents, representatives or any persons claiming through them from restraining, evicting, disposing, fencing, taking over or interfering with the applicant's user, occupation and possession of land parcel No. Mwimbi/Murugi/180 pending hearing and determination of the suit
  3. 3.Prayer (e) granted: the OCS Chogoria Police Station empowered to ensure compliance with the interlocutory injunction
  4. 4.Costs in the cause
  5. 5.Parties directed to come to court for directions on 14.5.2018

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 40
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Order 40 Civil Procedure Rules, Sections 1A, 1B, 3 and 3A Civil Procedure Act and Article 159 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ginson Kiragu Mberia v Stanley Bundi Rimberia [2018] KEELC 3646 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 18th April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3646/eng@2018-04-24

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