[2014] KEHC 7079 (KLR)
The application failed because it did not contain a prayer seeking an injunction to subsist until the hearing and determination of the suit. The only injunctive relief sought was pending the hearing and determination of the application itself, which had already been granted and was therefore spent. The court cannot...
Source-derived case information.
- Citation
- [2014] KEHC 7079 (KLR)
- Parties
- Plaintiff: Erick Opon Nyamunga; Defendant: Sutton Holdings Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 202 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Temporary Orders, Pleadings Deficiency, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Opon Nyamunga
Plaintiff
Sutton Holdings Ltd
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application contains a valid prayer for an injunction pending hearing and determination of the suit.
- 2 Whether the court can grant an order not specifically prayed for in the application.
Ratio Decidendi
The application failed because it did not contain a prayer seeking an injunction to subsist until the hearing and determination of the suit. The only injunctive relief sought was pending the hearing and determination of the application itself, which had already been granted and was therefore spent. The court cannot grant further or alternative injunctive relief not specifically prayed for. As such, despite the parties' submissions and affidavits addressing the merits as if such a prayer existed, the absence of a proper prayer in the application rendered the entire application unsustainable. The court declined to consider the substantive merits and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 11/11/2011 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HCC NO.202 OF 2011
ERICK OPON NYAMUNGA...................................................PLAINTIFF
VERSUS
SUTTON HOLDINGS LTD.................................................DEFENDANT
RULING
This ruling follows filing of submissions on the application dated 11/11/2011 and filed on the same date. The application is a Notice of Motion brought under Sections 3A and 63 of Civil Procedure Act (Cap 21) and Order 40 Rules 1 and 2 of Civil Procedure Rules and other applicable provisions of law.
The application has 3 prayers. They are as follows:
Prayer (1): That the court be pleased to certify the application urgent and hear it exparte in the first instance.
Prayer (2): That pending hearing and determination of the application interpartes, or further orders of the court, there be a temporary injunction against the defendant, its employees, agents, representatives assigns or any other person acting through its direction from trespassing, building upon or in any other way dealing in or interfering with the plaintiff's land Parcel Number KISUMU/KORANDO/1973.
Prayer 3: That costs of this application be provided for.
I have set out the prayers because the determination of the application is going to depend on the way prayer 2 is formulated.
When prayer 2 is looked at carefully, it is apparent that the court is being asked to issue an injunctive order against the 1st defendant – SUTTON HOLDING LIMITED – to run until the application is heard and determined. Under prayer 2 also, the court has the option to issue further orders. The court cannot issue the injunctive order and further orders at the same time. It is either one or the other and that is why the word “OR” is used in the prayer.
When the application was filed on 11/11/2011, a restraining order was granted as prayed in prayer 2. That prayer therefore became spent. There is no prayer made to run until hearing and determination of the suit. That is where the problem lies.
The plaintiffs has submitted and the defendants have responded as if there is precisely such a prayer. In fact I have read the application, replying affidavit and the supplementary affidavits filed. I have read the submissions too. All of them are well articulated and loaded with vital information. BUT they all amount to nothing because the prayer they purport to be referring to is lacking.
I don't intend to delve into the contents of the material laid before me in support or against the application. It would be an exercise in futility to do so bearing in mind the problem I have pointed out.
Bearing all this in mind, the application herein cannot stand and I hereby dismiss it with costs.
A.K. KANIARU – JUDGE
21/1/2014
21/1/2014
Before A.K. Kaniaru – Judge
Diang'a George – Court Clerk
No party present
Interpretation: English/Kiswahili
Ngala Awino for Ojoro for applicant
M/s Sichele for Menezes for 3rd respondent
COURT:Ruling on application dated 11/11/2011 and filed on the same date read and delivered in open COURT.
Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
21/1/2014