ASHISH MAGON AND TRIKUTI INVESTMENT LTD v HATARI SECURITY LIMITED [2008] KEHC 3503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL

COURTS)

CIVIL SUIT 93 OF 2008

ASHISH MAGON............................................…………...1ST PLAINTIFF

TRIKUTI INVESTMENT LTD...........................................2ND PLAINTIFF

VERSUS

HATARI SECURITY LIMITED .............................................DEFENDANT

R U L I N G

This Chamber Summons has been brought by the Plaintiffs under order XXXIX Rules 1 & 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.  It seeks the following principal orders:-

“The Defendant and its agents be restrained against barring the 1st Plaintiff entry into the premises known as Muguga Green L. R. NO. 1870/111/420 pending the hearing and determination of the instant suit.”

The application is supported by the affidavit of ASHISH MAGON sworn on the 4th March 2008 wherein he depones that he is one of the directors of the 2nd Plaintiff.  The application is based on the grounds that the said Ashish Magon is a director and shareholder of Trikuti Investments Ltd who is the registered owner of Muguga Green LR NO. 1870/111/420 and that the Defendant is illegally barring Ashish Magon from entry to the suit premises.

The application was brought under a certificate of urgency and the same was ordered to be served and to be heard inter partes on 2nd April 2008.  There is on record an Affidavit of Service dated 01/04/2008 stating that service was effected on the Defendant/Respondent on 10th March 2008.

On the date scheduled for the hearing of the application inter partes only the plaintiff’s counsel appeared in court.  The application therefore proceeded unopposed.  In the Plaint filed on 22nd February 2008 the 1st Plaintiff claims to be one of two directors of the 2nd Plaintiff herein.  The 2nd Plaintiff is said to be the registered proprietor of the suit property. It is further pleaded in the said Plaint that the Defendant be restrained against barring the access of the 1st Plaintiff to the suit land as the 1st plaintiff has an interest of ownership thereof.

The Affidavit in support of the application also states that the 1st plaintiff is a director of the 2nd plaintiff and the suit property is registered in the name of the 2nd Plaintiff.  In it the 1st Plaintiff depones that the other director of the 2nd Defendant has assured him on various occasions that she has not instructed the Defendant to bar the 1st Plaintiff from access to the suit property.  He depones further that without any authority or colour of right the Defendant has severally barred the 1st plaintiff from accessing the property in issue and that such act is illegal and seeks the orders sought.

The application is not opposed and the averments and submissions remain uncontraverted.  In the absence of any answer to the pleadings herein the court is left to consider what is on record on behalf of the plaintiff.  The Defendant is said to have been hired by the Plaintiff to guard their premises.  They are not said to claim any ownership of the premises.  The plaintiff claims to have terminated their services yet they refuse to cease guarding the premises.  The suit premises are said to be going to waste as they remain vacant and no rent can be gained therefrom.  The Plaintiffs, on the pleadings and submissions before the court have satisfied the court that they have a right that is being breached and which right requires the Court’s protection.  The upshot of the above is that the application dated 04/04/08 is successful and the Defendant and its agents are accordingly restrained against barring the 1st plaintiff’s entry into the premises known as Muguga Green LR. No. 1870/111/420 pending the hearing and determination of the suit.  The plaintiffs are also awarded the costs of the application.

DATED and DELIVERED in open court in NAIROBI this 17thday of April 2008.

In the presence of

H. Mwendwa for the Applicant.

P.  M.  MWILU

JUDGE

17. 04. 2008