[2001] KEHC 483 (KLR)
The court found that the applicant failed to set out or establish the necessary conditions for the grant of an injunction as set out in Giella v Cassman Brown & Co. Ltd. Specifically, the applicant did not demonstrate a prima facie case, did not show irreparable injury, and did not address the balance of...
Source-derived case information.
- Citation
- [2001] KEHC 483 (KLR)
- Parties
- Plaintiff: Elemenejildo Wanjohi Gichiru; Defendant: Lydia Goiri & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 515 of 2001
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Prima Facie Case, Irreparable Injury, Balance of Convenience, Land Access Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elemenejildo Wanjohi Gichiru
Plaintiff
Lydia Goiri & Another
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success for the grant of an injunction.
- 2 Whether the applicant will suffer irreparable injury not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant or refusal of the injunction.
Ratio Decidendi
The court found that the applicant failed to set out or establish the necessary conditions for the grant of an injunction as set out in Giella v Cassman Brown & Co. Ltd. Specifically, the applicant did not demonstrate a prima facie case, did not show irreparable injury, and did not address the balance of convenience. The evidence indicated that the disputed foot path had long existed and was used by others to access neighboring plots. The court held that the status quo should be maintained until the substantive case is heard and determined. Consequently, the application for injunction was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 515 OF 2001
ELEMENEJILDO WANJOHI GICHIRU ……….........………. PLAINTIFF
VERSUS
LYDIA GOIRI & ANOTHER …………………………… DEFENDANTS
R U L I N G
It is now settled law that before an order of injunction is issued by the court the complaining party must establish the following:-
(1) That there is a prima facie case of the main case, established with the probability of success;
(2) That if the injunction sought is not granted, the complaining party might suffer irreparable injury not likely to be compensated by an award of damages. And if the two conditions above raise any doubt, then:
(3) The court decides the application on a balance of convenience.
(See Giella v Cassman Brown & Co. Ltd [1973] E.A 358 and also Abel Salim & Others vs Okong’o others [1976] KLR 42).
If, then the complaining party draws the application in respect thereof and mentions none of these elements and even during the arguments in court says nothing about them, then one wonders why he/she came to this court for such an order!
In the present application the applicant is complaining about an access road which the respondents have allegedly constructed on his land but does not say how this has affected him and/or what damages he has suffered in respect thereof, or if there is no sufficient compensation which can meet this damage!
On the other hand, counsel for the respondent argues that there has always been a foot path at the suit site which was not part of the applicants land, used by people going to Gakuru Ngarai’s land, now plot numbers 590 and 591 (previously plot No.18), but which he acquired wrongly after annexing the area covered by the foot path on the death of the said Gakuru Ngarai.
That since the acquisition there has been a dispute over the site. That a surveyor visited the land and established the foot path and that it is this action the applicant is trying to restrain.
Given this background, this is not the sought of case where an order for injunction can be granted.
The application has not at all set out and/or established the set conditions for such an order to be granted.
What is the present status quo? That there is a foot path which has been used by those going to plot number 18, otherwise now known as plot numbers 590 and 591 and that this status quo should not be dismissed until the hearing and finalization of the pending case on merit.
I dismiss this application with costs.
Delivered this 11th day of July, 2001.
D.K.S AGANYANYA
JUDGE