IN THE HIGH COURT OF KENYA
AT NAIROBI (COMMERCIAL & TAX DIVISION – MILIMANI)
CIVIL CASE NO. 263 OF 2010
1) That an injunction do issue restraining the Defendants whether by themselves, their servants or authorized agents and/or any other person claiming under them from entering, trespassing, occupying, possessing, cultivating and/or interfering in any manner whatsoever with all that property known as Plot No. 3471 situated in Kahawa Sukari Estate, Nairobi and/or from building, constructing or putting any structure on the subject land pending the hearing and determination of this suit.
2) That an injunction do issue restraining the Defendants and each of them whether by themselves, their servants or authorized agents and/or any other person claiming under them from selling, leasing, transferring, sub-dividing or alienating all that property known as Plot No. 3471 Kahawa Sukari Estate, Nairobi pending the hearing and determination of this suit.
3) That pending the hearing of this application inter partes, interim orders be made in terms of prayers 2 and 3 above to ensure that the orders finally made herein are not rendered nugatory.
4) That the costs of this application be borne by the Defendants.
a) The Plaintiff is the duly appointed Attorney of Jafred Angaluki Muaka vide a Power of Attorney registered as No P/A 42981/1 and registered at the Lands Registry, Nairobi, on 6th June 2006.
c) The 1st Defendant has breached the agreed terms of sale and declined to sign a transfer and/or process the Title Deed in favour of the donor todate and despite numerous demands and promises to comply.
e) The Defendants have jointly colluded and altered and/or interfered with the official record and documents pertaining to the property so as to substitute the name of the donor with that of the 2nd Defendant as the true owner of the property.
g) The actions of both Defendants are manifestly illegal, fraudulent and amount to trespass on the donor’s lawful property.
i) Unless the orders sought herein are granted, the Defendants are likely to alienate the property to a Third Party and/or continue with the acts of trespass aforesaid and the donor being the lawful owner thereof will suffer substantial loss and irreparable damage.
ii) The 1st Defendant/Respondent has not entered, trespassed upon or occupied the suit property nor threatened to do so and therefore prayer No. 2 in the application does not lie against the 1st Defendant/Respondent.
iii) The 1st Defendant/Respondent has not threatened to sell, lease, alienate or sub-divisive the suit property and therefore prayer No. 3 in the application does not lie against the 1st Defendant/Respondent.
iv) The 2nd Defendant is not the registered proprietor of the suit property and therefore the present suit is incurably defective for misjoinder of parties and causes of action.
As I understand it, the Plaintiffs case is that he purchased all that property known as Plot No. 3471, Kahawa Sukari Estate, Nairobi, from the 1st Defendant in 1993 and paid the full purchase price thereof. In breach of the agreed terms of sale, the 1st Defendant declined to sign the transfer and/or process the title deed in the Plaintiff’s favour and instead allegedly transferred the property to the 2nd Defendant as the true owner thereof. Consequently, the 2nd Defendant allegedly trespassed onto the property, took possession thereof, and constructed a septic tank on that property.
Having denied that it has threatened to sell, lease, or alienate, or sub-divide the suit property, and with the 2nd Defendant having decided to keep aloof of this matter, the Defendants have thereby facilitated the establishment by the Plaintiff of a prima facie case with a probability of success. Indeed, the averments by the 1st Defendant suggest that it still stands by the agreement between the parties and that there is no change of heart. If that were the case, the 1st Defendant would have proceeded to execute the agreement between it and the Plaintiff in order to have the Plaintiff registered as the proprietor of the suit property. Having failed to do so, the Plaintiff genuinely feels threatened and fears that the 1st Defendant is reluctant to execute the agreement to its conclusion, which would be a breach of contract
“In any suit for restraining the Defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after the commencement of the suit…apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the said contract, or relating to the same property or right.”
I accordingly grant an injunction in terms of prayer 2 of the application and hereby restrain the Defendants whether by themselves, their servants or authorized agents and/or any other person claiming under them from entering, trespassing, occupying, possession, cultivating and/or interfering in any manner whatsoever with all that property known as Plot No. 3471 situated in Kahawa Sukari Estate, Nairobi, and/or from building, constructing or putting any structure on the subject land pending the hearing and determination of this suit. This injunction however, will be conditioned on the Plaintiff filing undertaking to pay damages, if any, to the Defendant in the event that it is found at the trial that the injunction ought to not to have been issued. The said undertaking to be filed within 7 days from today. The Plaintiff will also have the
costs of this application.
Orders accordingly.
L NJAGI
JUDGE
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