[2011] KEHC 4162 (KLR)
The court held that interlocutory injunctions are preventive in nature and cannot be used to reverse a situation where the respondents are already in possession of the suit property. Granting the orders sought would amount to a mandatory injunction, which is not appropriate at the interlocutory stage. Furthermore,...
Source-derived case information.
- Citation
- [2011] KEHC 4162 (KLR)
- Parties
- Appellant: Agnes Mumbi Karuga; Respondent: Kelvin Muchiri Kamau; Respondent: Dominic Mwangi Runji
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 73 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Injunction Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Mandatory Injunctions, Possession of Land, Appeals Against Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Mumbi Karuga
Appellant
Kelvin Muchiri Kamau
Respondent
Dominic Mwangi Runji
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Injunction Pending Appeal
Legal Issues
- 1 Whether an interlocutory injunction can be granted to dispossess respondents already in possession of the suit property.
- 2 Whether the applicant is entitled to a mandatory injunction at the interlocutory stage.
- 3 Whether the existence of parallel suits in the subordinate court affects the propriety of the present application.
Ratio Decidendi
The court held that interlocutory injunctions are preventive in nature and cannot be used to reverse a situation where the respondents are already in possession of the suit property. Granting the orders sought would amount to a mandatory injunction, which is not appropriate at the interlocutory stage. Furthermore, since the lease in question was for the 2010 season and may have expired, and there are already two pending suits in the subordinate court over the same property, it is more appropriate for the parties to pursue those proceedings for a final determination of their rights. The application for interlocutory injunction therefore lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for interlocutory injunction is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO 73 OF 2010
AGNES MUMBI KARUGA……………………..…...............................................………APPELLANT
VERSUS
KELVIN MUCHIRI KAMAU……………….............................................……… 1ST RESPONDENT
DOMINIC MWANGI RUNJI…………….................................................………2ND RESPONDENT
R U L I N G
The applicant in the Notice of Motion dated 30. 07. 2010 is the Appellant in this appeal. Her appeal is against the order of the learned trial magistrate Mr. D.A Ocharo delivered on 8th July 2010 dismissing her application for interlocutory orders of injunction.
In the meantime, while pending the determination of the said appeal, the Applicant filed this notice of motion.
The Appellant/Applicant states that she is the licence holder of rice holding No. 2251 which is the subject of these proceedings. The respondents have staked a claim on the said plot saying that they have leased the same from the legal representatives of the estate of the Applicant’s mother. Following the dismissal of the Application for injunction, the respondents are said to have taken possession of the said rice holding. That was in July 2010. As rightly stated by the magistrate therefore, the Respondent is already in possession and injunctive orders would not lie.
Interlocutory injunctions are meant to prevent an act from happening and not to reverse what has already happened. An injunction that is going to have the effect of evicting i.e. ejecting the respondents from the premises would be a mandatory injunction and the same cannot be granted at this stage.
Secondly, the leasehold in question was for the 2010 season and by the time this ruling is delivered, there is a likelihood that the same will have expired or will be about to expire.
Thirdly, the parties herein have two suits before the subordinate court over the same suit premises. It will be more efficacious to pursue those suits that will determine the rights of parties conclusively than engage in appeals over interlocutory orders. This Application lacks merit and the same is therefore dismissed with no orders as to cost.
W. KARANJA
JUDGE
Signed by the above but:
Delivered and dated by the undersigned at Embu this 1st day of February 2011
H. M. OKWENGU
JUDGE
In presence of:- In presence of:- Ms. Kahara Holding brief for Waweru for Applicant . Respondent absent