Fridah Kendi v Lawrence Majau Mberia, Festus Kathendu & Municipal Council of Meru [2015] KEHC 3967 (KLR)

REPUBLIC  OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL CASE NO. 104 OF 2012

FRIDAH KENDI ............................................PLAINTIFF /RESPONDENT

VERSUS

LAWRENCE MAJAU MBERIA ............1ST DEFENDANT/APPLICANT

FESTUS KATHENDU ...........................2ND DEFENDANT/APPLICANT

MUNICIPAL COUNCIL OF MERU .............................3RD DEFENDANT

R U L I N G

This application is dated 22nd April,  2015 and seeks orders:-

THAT the application be certified very urgent and it be heard ex-parte in the first instance.

THAT  pending inter partes  hearing of the application, the ex-parte order of injunction granted and issued herein on 21. 09. 2012, be discharged forthwith.

THAT pending hearing and determination of the application dated 09. 12. 2014 or the suit, the ex-parte Order of injunction granted and issued herein on 21. 09. 12, be varied to the effect that all the rent accruing from the suit premises to wit , Plot No. 45 and Plot No. 62,both situated in Madaraka estate in Makutano area within Meru Township, be deposited in an interest earning account in a reputable bank, opened in the joint names of  counsel for the 1st and 2nd defendants/applicants and the Plaintiff /respondent.

THAT  pending hearing and determination of the application dated 09. 12. 2014  or the suit, the plaintiff /respondent be ordered to forthwith release all the rent accrued, collected and received from the aforesaid  plot No 45 and Plot No.62, both situated in Madaraka estate in Makutano area within Meru township, from the date of filing this suit to-date, and the same be deposited  in an interest earning account in a reputable bank, opened in the joint names of counsel  for the 1st and 2nd defendants/applicants and the plaintiff/respondent .

That cost of the application be borne by the plaintiff/respondent.

It is supported by the affidavit of Lawrence Majau Mberia and has the following grounds:-

THAT the ex-parte order of injunction granted and issued  herein on 21. 09. 12 should be discharged by virtue of Order 40 Rules 6 and 7 of  The Civil Procedure Rules,2010.

THAT  the 2nd defendant/applicant is an innocent purchaser for plot No. 45 and Plot No.62 both situate in Madaraka estate in Makutano  area within Meru Township.

THAT the respondent has been exclusively receiving all the rent from the suit premises.

On 14/05/15 when the application was to be heard interpartes,  Mr.Kaimenyi, holding brief for Miss Kiome for the Plaintiff,  told  the Court that Miss Kiome had lost  contact with the Plaintiff. In the circumstances I allow it with the effect that Prayer 4 is granted. Costs are awarded to the applicant.

It is so ordered.

Delivered in Open Court at Meru this 14th day of May, 2015 in the presence of:-

CC: Daniel /Lilian

Carlpeters Mbaabu for Applicant

Kaimenyi holding  brief  miss Kiome for Plaintiff

P.M. NJOROGE

JUDGE