[2014] KEELC 424 (KLR)
The court found that the defendant was already in occupation of the suit properties and had constructed houses thereon, a fact not denied by the plaintiffs. The purpose of an interlocutory injunction under Order 40 Rule 1(a) and (b) is to prevent future harm or waste, not to reverse actions already taken. Granting a...
Source-derived case information.
- Citation
- [2014] KEELC 424 (KLR)
- Parties
- Plaintiff: Anthony Getambu; Plaintiff: Dr. Esther Muthoni Getambu; Defendant: Paul Katana Kalala
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 90 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary and mandatory injunctions dismissed; status quo order granted.
- Judges
- SN Mukunya
- Legal Topics
- Injunctive Relief, Status Quo Orders, Ownership Disputes, Mandatory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Getambu
Plaintiff
Dr. Esther Muthoni Getambu
Plaintiff
Paul Katana Kalala
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendant from interfering with their occupation and possession of parcels Kilifi/Roka/1237 and 1238.
- 2 Whether a mandatory injunction should issue to remove the defendant from the suit properties pending the hearing of the suit.
Ratio Decidendi
The court found that the defendant was already in occupation of the suit properties and had constructed houses thereon, a fact not denied by the plaintiffs. The purpose of an interlocutory injunction under Order 40 Rule 1(a) and (b) is to prevent future harm or waste, not to reverse actions already taken. Granting a mandatory injunction to remove the defendant at this stage would amount to determining the substantive issues of the suit without a full hearing, which would be unjust. Therefore, the application for both temporary and mandatory injunctions was declined. However, to preserve the subject matter, the court ordered maintenance of the status quo, prohibiting further construction,...
Court Disposition
Application for temporary and mandatory injunctions dismissed; status quo order granted.
Orders
- Status quo to be maintained: no further construction, selling, leasing, or any other transaction in regard to parcels Kilifi/Roka/1237 and 1238 until the suit is heard or further orders of the court.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 90 OF 2012
ANTHONY GETAMBU
DR. ESTHER MUTHONI GETAMBU............. PLAINTIFFS
- V E R S U S -
PAUL KATANA KALALA ................................ Defendant
RULING
[1] The applicant in this case applied for a temporary order of injunction restraining the defendant either by himself, his agents or servants from interfering with the plaintiffs occupation and possession of parcels Kilifi/Roka/1237 and 1238. He further prays for a mandatory injunction to remove the defendant from the plaintiffs parcels of land aforesaid pending the hearing of this suit. The plaintiffs claim that they are the registered owners of the said lands and they exhibited the title deeds therein, the titles for 1237 having been issued on 2nd February, 1993 and that of 1238 having been issued on 6th November, 1992
[2] The defendant stated that he entered the land in 1985 having been authorised by the Chief of his area to do so. He avers that he has already built permanent and semi permanent houses thereon. he exhibited photographs showing his houses.
[3] I have perused the various submissions by counsel for the applicant and counsel for the respondent and considered them thoroughly. It is not denied by the plaintiff that the defendant has not settled on the suit premises and has constructed his houses. He lives there. The applicant asks the court to injunct the respondent over what has already been done. Order 40 1 (a) and (b) are provisions for stopping a property in danger of being wasted from actions that would end in wasting it. It is not a provision for reversing what is already done.
[4] The second claim of mandatory injunction to remove the defendant from the plaintiffs parcels, 1237 and 38 pending the hearing of the suit cannot be done at this stage. A closer look at the plaint dated 27th March, 2012 will reveal that Para 8 (b) (c) and (d) asks for the same and/or similar prayers. If this prayer is granted, I will have determined the suit without having had the opportunity of having heard the parties to this suit. This will lead to a miscarriage of justice. This application cannot be granted. However since the plaintiffs are the registered owners, a fact not disputed by the defendants, I will order that status quo shall be maintained, there shall be no further construction, selling, leasing and any other transaction in regard to the suit properties until this suit is heard and/or further orders from this court. Costs of this application shall be in the suit.
Dated and delivered in open Court at Mombasa this 27th day of March, 2014.
S. MUKUNYA
JUDGE
27. 3.2014
In the presence of:
Mr. Wachira Advocate for the plaintiffs/applicant
Ngunga Mwinga Advocate for the respondent