[2019] KEELC 3664 (KLR)
The court found that it had already rendered its final decision on 10.7.2014, ordering the refund of the purchase price, and dismissed an application for review on 5.5.2015. With no pending appeal, the court held that it was functus officio and could not grant further interlocutory orders such as an injunction. The...
Source-derived case information.
- Citation
- [2019] KEELC 3664 (KLR)
- Parties
- Plaintiff: David Bandich; Defendant: Joel Tirop Busienei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 998 of 2012
- Procedural Posture
- Interlocutory Application / Ruling on Application for Interim Injunction
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Injunctions, Execution of Judgments, Refund of Purchase Price, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Bandich
Plaintiff
Joel Tirop Busienei
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Interim Injunction
Legal Issues
- 1 Whether the court should issue interim orders of injunction restraining the plaintiff from dealing with the disputed land parcel pending payment of the refund as previously ordered.
- 2 Whether the court retains jurisdiction to grant further orders after its final judgment and dismissal of review application.
Ratio Decidendi
The court found that it had already rendered its final decision on 10.7.2014, ordering the refund of the purchase price, and dismissed an application for review on 5.5.2015. With no pending appeal, the court held that it was functus officio and could not grant further interlocutory orders such as an injunction. The proper course for the applicant was to extract the decree and proceed with execution. The application for interim injunction was therefore dismissed with costs, as litigation must come to an end and the court cannot continue to entertain further applications on the same matter.
Court Disposition
application dismissed with costs
Orders
- The application for interim injunction is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 998 OF 2012
DAVID BANDICH.....................................PLAINTIFF/RESPONDENT
VERSUS
JOEL TIROP BUSIENEI..........................DEFENDANT/APPLICANT
RULING
The defendant prays for orders that this Honourable Court be pleased to issue interim orders of injunction to plaintiff/respondent from dealing with disputed land parcel number Nandi/Kamoiywo/1114 until payment is done as per an order to refund purchase price of Kshs.550,000 (Kenya Shillings Five Hundred and Fifty thousand Only) plus interest therein until it is fully paid and the same to apply to his agents, legal representatives and servants not to dispose off the said land parcel transfer, lease or mortgage bending the inter-party hearing and determination of this application. That the costs of this application be provided.
The application is based on grounds that the respondent/plaintiff has defaulted orders issued on 10. 7.2014 that the respondent to refund the applicant Kshs. 550,000 (Five Hundred and Fifty Thousand Shillings Only) plus interest until full payment. That the plaintiff/respondent has refused, neglected or ignored to comply with this Honourable court order despite being asked to do so by the defendant/applicant and the same has indicated that he is not capable of refunding the said money therefore this court should order the plaintiff to surrender the disputed land parcel equivalent to the said money.
That the plaintiff/respondent has made the application at the Land Control Board with intention to transfer the disputed land parcel before refunding the purchase money which if it is not stopped will be prejudicial to the defendant/applicant. The respondent is trying to dispose off the disputed land before the applicant is paid his purchasing price which was ordered by this court.
I have considered the application, supporting affidavit and do find that this court reached its decision on 10. 7.2014. Application for review was dismissed on 5. 5.2015. There is no pending appeal. The parties herein can only extract the decree and execute the same. The court is functus officio. Litigation has to come to an end. The application is dismissed with costs.
Dated and Delivered at Eldoret this 12th April, 2019.
ANTONY OMBWAYO
JUDGE