Wilson Kinoti Kirera v Isaac Kiruki Murira [2013] KEHC 2351 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT MERU

E & L CASE NO. 64 OF 2013

WILSON KINOTI KIRERA......................................................................PLAINTIFF

VERSUS

ISAAC KIRUKI MURIRA.....................................................................DEFENDANT

R U L I N G

The application herein was filed in Court by way of Chamber Summons through a Certificate of urgency.  It was premised on provisions of the law set out on its face.  It is dated 7. 3.2013 and seeks orders:

THATthis Honourable Court be pleased to certify this application as urgent, service therefore be dispensed with at the first instance and the same be heard ex-parte in the first instance.

THATthis Honourable Court be pleased to issue an order of temporary injunction to restrain the Defendant/Respondent herein, his agents, servants, employees or anybody else whosoever acting under his behest or instructions from cutting down trees and/or in any way damaging crops and tree bushes or in any way from entering, remaining or interfering with Land Parcels No. ABOTHUGUCI/KATHERI/2652 and 2656 pending the hearing and determination of this suit.

THATthis Honourable Court do issue an Order of Inhibition and the same be registered against Land Parcels NOS.ABOTHUGUCI/KATHERI/2652 and 2656 currently registered in the names of the Defendant/Respondent to stop any dealings and/or transfer of the same pending the hearing and determination of this suit.

THATupon granting the Order sought for in prayer No. 2 above, this Honourable Court be pleased to issue a Notice of Penal consequences in the event of disobedience of the said Order by the Respondent and/or anybody whosoever acting on his behalf or behest.

THATthe costs of this application be borne by the Respondent.

The matter was certified urgent on 8. 3.2013 and prayers 2 and 3 were granted on interim basis.  The application was fixed for hearing on 26. 4.2013.

On 26. 4.2013, Mr. M. Muriithi, Advocate, holding brief for Mr. Kitheka, advocate for the plaintiff informed the Court that the defendant had failed to attend the hearing even though he had been properly served with the hearing date. The court satisfied itself that the Respondent had been properly served and allowed the applicant to prosecute the application.

The applicant, through his advocate, told the Court that he was only seeking prayer Number 3 in the application pending the hearing and determination of the suit herein.  By so doing he had abandoned prayers 2, 4 and 5.  He relied on grounds set out in the application, the apposite supporting affidavit and annextures.

He explained that the applicant had purchased Land Parcels Numbers ABOTHUGUCI/KATHERI/2652 AND 2656 from the respondent after fully paying the purchase price.  He stated that the defendant had been spotted on the subject parcels of land with potential buyers.  It is for this reason that the applicant sought preservation of the suit properties through Orders of Inhibition directed at each one of the said properties.

Finally, he submitted that the applicant deserved the orders sought as the respondent had not opposed the application even though he had been properly served with the necessary papers.

I have considered the submissions made on behalf of the applicant.  I find that the application has not been opposed by the respondent.  I also note that the applicant has abandoned prayers 2, 4 and 5.  In the circumstances, I grant the applicant Prayer 3 in the following terms:

THATorders of Inhibition do issue and be registered against Land Parcels Nos. ABOTHUGUCI/KATHERI/2652 and 2656 currently registered in the names of the Defendant/Respondent to stop any dealings and or transfer of the same pending the hearing and determination of this suit.

Costs be in the cause.

It is so ordered

Delivered and Signed in Open Court at Meru this 24th day of July 2013 in the presence of:

Miss Kiome h/b Kitheka for Applicant

Defendant – Not present

P. M. NJOROGE

JUDGE