FREDRICK MUCHIRU GICHERU & 18 OTHERS v SAMI KIRIKA, SIMON NGURE, BEDAN MWANGI, PATRICK KAMAU & 3 others [2004] KEHC 118 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 807 of 2004

FREDRICK MUCHIRU GICHERU & 18 OTHERS …..........................................….PLAINTIFFS

-VERSUS-

SAMI KIRIKA…………………….………............................………………1ST DEFENDANT

SIMON NGURE………………………...............................……………….2ND DEFENDANT

BEDAN MWANGI………………………...........................……………….3RD DEFENDANT

PATRICK KAMAU ………………………............................……………..4TH DEFENDANT

JOHN RUOYA ………………………...........................…………………..5TH DEFENDANT

SAMUEL KIMANI…………………….............................…………………6TH DEFENDANT

ROWLAND MBURU…………………...........................………………….7TH DEFENDANT

RULING

On the 26th July, 2004, the Plaintiffs/Applicants filed a Chamber Summons application dated the 22nd July 2004 in which the applicants sought orders to restrain the Defendants/Respondents from interfering in whatever manner with the Applicants’ownership and right of use of the suit property or otherwise interfering with the Applicants  quiet enjoyment thereof. The application is supported by the affidavits of the First Plaintiff/Applicant, Fredrick Muchiru Gicheru, respectively made on the 22nd July 2004, the 16th August 2004 and the 22nd October 2004.

At the hearing of the application, Mr. George Kimani for the Applicants argued, in addition to advancing the grounds set out in the application and in the supporting affidavits aforesaid, that the Respondents have not shown any evidence whatsoever of ownership of the suit property – indeed, their claim is the proceedings filed in Naivasha Senior Principal Magistrate’s Court Civil Suit No. 718 of 2004 which is still pending in the lower court is in respect of Plot Numbers 334 and 335, Karati and not Plot Number 934 the subject of this application.

In reply, Mr. P.K. Njuguna for the respondents, and in opposition to the application, dwelt at some length on the Replying Affidavit of the first Defendant/Respondent made and filed on the 13th October 2004. In particular, learned counsel drew the court’s attention to what is deponed to in paragraph 5 and7 of the said affidavit as well as the pleadings in the proceedings of the lower court aforesaid and especially the affidavits therein of pastor Samuel Kirika and Simon Gachie respectively in support of the Chamber Summons application dated the 30th July 2004. Learned counsel stated that the applicant, in paragraph 5 of the further affidavit of the First plaintiff/applicant made on the 22nd October 2004, generally and specifically failed to show that the plaintiffs/applicants acquired the suit premises in their personal capacities as alleged or that they use the same for purposes of an education institute and or nursery school.

Having considered the application in light of these submissions of learned counsel, I am not satisfied that the applicants have met the conditions for the granting of the equitable orders sought. Even on their own evidence as adduced in annexures “FMG 1 and 2” to the Supporting Affidavit of the First Plaintiff/applicant made on the 22nd July 2004, the applicants have been unable, even on the balance of convenience, to fulfill the conditions precedent for the granting of the injunction sought.

In the result, the Chamber Summons application dated the 22nd July 2004 fails and is hereby dismissed. It is ordered accordingly and further that the Applicants and the Respondents shall bear their respective costs of the application.

Dated and delivered at Nairobi this nineteenth day of  November 2004.

P.K. Kihara Kariuki

Ag. Judge