[2007] KEHC 3328 (KLR)
The court determined that granting the 1st Defendant's application for a temporary injunction would result in two conflicting court orders, each restraining the other party from dealing with the suit premises. Such a situation would make compliance with court orders impossible and is not permissible. The appropriate...
Source-derived case information.
- Citation
- [2007] KEHC 3328 (KLR)
- Parties
- Plaintiff: Alice Wangui Nyoike; Plaintiff: John Kagwi; Defendant: Sammy Ngugi Ng’era; Defendant: Unknown (3 other defendants)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 460 & 105 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction
- Outcome
- Application stayed pending further action by the 1st Defendant/applicant.
- Judges
- KH Rawal
- Legal Topics
- Interlocutory Injunctions, Ex Parte Orders, Conflicting Court Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wangui Nyoike
Plaintiff
John Kagwi
Plaintiff
Sammy Ngugi Ng’era
Defendant
Unknown (3 other defendants)
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the court should grant a temporary injunction in favour of the 1st Defendant restraining the Plaintiffs from interfering with the suit premises.
- 2 Whether the existence of conflicting ex-parte injunctions against both parties renders compliance with court orders impossible.
- 3 What is the proper procedure for varying or setting aside an existing ex-parte order.
Ratio Decidendi
The court determined that granting the 1st Defendant's application for a temporary injunction would result in two conflicting court orders, each restraining the other party from dealing with the suit premises. Such a situation would make compliance with court orders impossible and is not permissible. The appropriate course is for the applicant to either file an application to set aside the existing ex-parte order in favour of the Plaintiffs or amend the current application to include such a prayer. Until such procedural steps are taken, the present application is stayed.
Court Disposition
Application stayed pending further action by the 1st Defendant/applicant.
Orders
- The application dated 1st April, 2007 is stayed pending the 1st Defendant filing an application to set aside the ex-parte order granted to the Plaintiffs or amending the present application to include such a prayer.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 460 & 105 of 2005
ALICE WANGUI NYOIKE
JOHN KAGWI………………………………………...PLAINTIFF
VERSUS
SAMMY NGUGI NG’ERA AND 4 OTHERS…DEFENDANTS
RULING
The Plaintiffs herein filed this suit on 22nd April, 2005 and on application dated 1st September, 2006 obtained an ex-parte injunction against the 1st Defendant herein restraining him from selling, alienating, transferring or developing the suit parcel.
The said application is still pending hearing with an ex-parte order in existence against the 1st Defendant.
Thereafter the 1st Defendant also filed a separate suit being H.C.C.S. No.937 of 2006 which is stayed pending the hearing and determination of this suit by an order dated 5th March, 2007.
Then the present application dated 1st April, 2007 was filed on 23rd July, 2007.
It is brought under Sections 3A and 63(e) of the Civil Procedure Act and Order XXXIX rules 3, 4 and 9 of the Civil Procedure Rules.
It seeks substantive order for temporary injunction restraining the Plaintiff from dealing with, wasting, alienating, meddling or interfering with the 1st Defendant’s use or right of access to and/or in any other manner whatsoever using or purporting to use the suit premises.
In the meantime although the file of this suit has been reconstructed, I do not see the replying affidavit from the 1st Defendant to the application of the Plaintiffs referred hereinbefore, wherein an ex-parte order is issued against the 1st Defendant.
Although, the issue is not raised by the learned counsel for the Plaintiffs I do note that the effect of the order sought for by the 1st Defendant, if granted, shall be the two distinct orders with similar results but against each party an d the same will be on record of this suit expecting compliance thereof.
In short, the Plaintiffs have an ex-parte order which is still in existence which restrains the 1st Defendant from doing similar actions as relate to the suit premises and if this application is heard and allowed the 1st Defendant shall have similar order but against the Plaintiffs, making the obedience of the court orders impossible.
This awkward situation cannot be encouraged by this court as the court never gives order in vain.
This application has created very strong case as regards the procedure of the variance or setting aside of the existing court order.
How shall this court deal with this situation?
In my considered view, the only way forward is as follows namely; I direct and order that the applicant either file an application to set aside the ex-parte order granted to the Plaintiffs or amend the present application so as to include similar prayer.
In the premises, this application is stayed pending further actions by the 1st Defendant/applicant.
Costs in the cause.
K.H. RAWAL
JUDGE
5. 12. 07