[2009] KEHC 3128 (KLR)
The court found that the applicant sought to remove the respondent from the land and prevent further occupation, but did not specifically seek a mandatory injunction, which is the appropriate remedy for such relief. The application was for a temporary (prohibitory) injunction, but the circumstances did not meet the...
Source-derived case information.
- Citation
- [2009] KEHC 3128 (KLR)
- Parties
- Applicant: Caleb Okoth Ouko (suing as the personal and legal Representative to the Estate of Asenath Auma Akuno (Deceased)); Respondent: Tom Otieno Apola
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 101 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Temporary Injunctions, Mandatory Injunctions, Trespass to Land, Eviction Proceedings
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Okoth Ouko (suing as the personal and legal Representative to the Estate of Asenath Auma Akuno (Deceased))
Applicant
Tom Otieno Apola
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from occupying or dealing with the suit land pending determination of the suit.
- 2 Whether the circumstances justify the grant of a mandatory injunction to remove the respondent from the land.
Ratio Decidendi
The court found that the applicant sought to remove the respondent from the land and prevent further occupation, but did not specifically seek a mandatory injunction, which is the appropriate remedy for such relief. The application was for a temporary (prohibitory) injunction, but the circumstances did not meet the requirements under Order 39 rule 1 of the Civil Procedure Rules, as there was no allegation that the property was in danger of being wasted, damaged, alienated, or wrongfully sold. The court held that a prohibitory injunction could not be granted in these circumstances, and since a mandatory injunction was not sought, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for temporary injunction is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 101 of 2009
CALEB OKOTH OUKO (suing as the personal and legal Representative to the
Estate of ASENATH AUMA AKUNO (Deceased)….....…PLAINTIFF/APPLICANT
AND
TOM OTIENO APOLA …………..................................DEFENDANT/RESPONDENT
RULING
Parcel No. Central Kasipul/Kamuma/1721 measuring about 0. 07 Hectares belongs to the deceased Asenath Auma Akuno. The Plaintiff/Applicant is the grantee of Letters of Administration ad litem in regard to the Estate left behind. He states that since about March 2009 the Defendant/Respondent has without any colour of right or consent trespassed upon the land, taken possession, fenced it and has commenced construction. He has filed this case for eviction and permanent injunction. In the meantime, he seeks an order of temporary injunction restraining the Respondent by himself, his servants/agents or any other person(s) claiming through him from repossessing, occupying or dealing howsoever with the land.
The application was served. The Respondent appointed Eric Ntabo & Co. advocatesto act for him. On the appointed day of hearing neither Respondent nor his Advocate attended. No papers were filed in response.
In presenting the application, Mr. Ochillo reliedon Giella v. Cassman Brown & Co. Ltd [1973] EA 358 to say the principles for the grant of temporary injunction had been established by the Applicant.
It is clear that the property in question is being wasted and damaged, but can prohibitory injunction be granted? The Respondent is not threatening to enter the land which would be a basis for the sought injunction. I understand the Applicant to be seeking an order to remove the Respondent from the parcel of land and to be so removed until the suit is heard and determined. Order 39 rule 1 of the Civil Procedure Rules cannot be invoked for injunction where there is no allegation that any property in dispute in the suit is in danger of being wasted, damaged or alienated or wrongfully to be sold (Agip (K) Ltd v. Maheshchandra Vora & Others [2000] 2 EA 285). It is only a mandatory injunction that would have been appropriate to remove the Respondent from the land and to destroy the house he has already erected thereon (East African Fine Spinners Ltd and Others v. Bedi Investment Ltd Civil Application No.72 of 1994 at NBI). The Applicant did not seek a mandatory injunction. The application is consequently dismissed with costs.
Dated, signed and delivered at Kisii this 29th day of June, 2009
A.O. MUCHELULE
JUDGE
29th June, 2009
Before A. O. Muchelule Judge
Mr. Ochillo for Applicant
Parties present.
Court: Ruling in open court.
A.O. MUCHELULE
JUDGE