Julius Murithi Kimathi v Zipporah Kithara Mukiri [2016] KEHC 4492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL CASE NO 126 OF 2010

JULIUS MURITHI KIMATHI …......................................................PLAINTIFF

VERSUS

ZIPPORAH KITHARA MUKIRI................................................DEFENDANT

R U L I N G

This application is dated 14th October, 2016 and seeks orders:-

1.   That this Honourable Court  be pleased to certify this application as  urgent and the same be heard exparte.

2.    That this Honourble Court be pleased to issue and register an  order  of Temporary Inhibition against Land Reg. No.                               NTIMA/IGOKI/2429 pending the hearing and determination of  this suit.

3.    That this Honourable Court be pleased to issue an order of  temporarily injunction restraining the defendant by herself, her  agents or assignees from evicting the Plaintiff from land Registration NO. NTIMA/IGOKI/2429 and or interfering with her  quiet  possession of the suit land until this suit is heard and  determined.

4. That costs of this application be provided for.

The application is supported by the Affidavit of JULIUS MURITHI KIMATHI and has the following grounds:-

a)   The Respondent /Defendant has threatened to sell and transfer to third  parties the Suit land and thus render the Plaintiff/Applicant and his  family destitute despite being born and raised on the suit land.

b)  The Defendant/Respondent has since clandestinely removed the caution over the subject land lodged by the Plaintiff and is in the process of  transferring the land to third parties.

c)  That the Plaintiffs interests and massive development on the suit land  will be prejudiced if the intended sale and alienation takes place.

The parties have canvassed this application by way of Written Submissions.  Many of the issues raised herein can only be determined after the main suit has been heard . I note that this suit has remained unheard for close to 6 years.

I do not wish to reinvent the wheel.  The Court of Appeal in the case of Mbuthia Versus Jimba Credit Corporation [1988] KLR 1 has eruditely given directions regarding how Injunctive  Interlocutory applications should be  handled. It opined as follows:

“The correct approach in dealing with an application for an interlocutory   injunction is not to decide the issue of fact, but rather to weigh up the  relevant strength of each side's propositions.  The lower court judge had  gone beyond his proper duties and made final findings of fact on disputed   affidavits.”

I do not wish to decide on matters that can not be determined at this Interlocutory Stage. I opine that the weight of the parties diametrically opposed assertions falls in favour of declining  to issue Injunctive Orders.

It is ordered as follows:-

Prayer 3 for Injunctive Orders is denied.

In the Interest Justice,  prayer 2 for Inhibition is allowed.

The Plaintiff is ordered to  fully comply  with Order 11, CPR , within 30 days.

The Defendant is ordered to comply with Order 11, CPR, within 30 days after receipt of the Plaintiffs compliance documents and if the Plaintiff will not have complied within the stipulated time, the Defendant should nevertheless comply after the time stipulated  for the Plaintiff to  comply has elapsed.

The Plaintiff is ordered to set down this case for hearing within  90 days, and in default, the  Defendant may do so.

It is so ordered.

DELIVERED IN OPEN COURT AT MERU THIS 11TH DAY OF MAY, 2016 IN THE PRESENCE OF:-

Cc: Daniel /Lilian

Wamache h/b Kaimenyi for the Plaintiffs

Mutura h/b Kioga for the Defendant

P.M. NJOROGE

JUDGE