[2011] KEHC 3402 (KLR)
The court held that granting the interlocutory injunction sought by the plaintiff would preempt the hearing and determination of the main suit, as the orders would effectively dispose of the substantive issues before trial. The defendant's failure to file a defence or respond did not entitle the plaintiff to...
Source-derived case information.
- Citation
- [2011] KEHC 3402 (KLR)
- Parties
- Plaintiff: Esther Chesang Soi; Defendant: Wilson Makeret Soi
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 75 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for interlocutory injunction disallowed; suit to proceed to ex parte hearing.
- Legal Topics
- Proprietary Title, Vacant Possession, Eviction Orders, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Chesang Soi
Plaintiff
Wilson Makeret Soi
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from entering or interfering with the suit land pending hearing and determination of the suit.
- 2 Whether the defendant's failure to file a defence or respond to the application affects the grant of interim orders.
Ratio Decidendi
The court held that granting the interlocutory injunction sought by the plaintiff would preempt the hearing and determination of the main suit, as the orders would effectively dispose of the substantive issues before trial. The defendant's failure to file a defence or respond did not entitle the plaintiff to interlocutory relief as a matter of course. The proper course was for the suit to proceed to ex parte hearing, where the plaintiff could adduce evidence and seek final orders. Accordingly, the application for interlocutory injunction was disallowed, with no order as to costs.
Court Disposition
Application for interlocutory injunction disallowed; suit to proceed to ex parte hearing.
Orders
- The application dated 2/11/2010 is disallowed.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL CASE NO.75 OF 2010
ESTHER CHESANG SOI………………………………………PLAINTIFF
VERSUS
WILSON MAKERET SOI……………………………………DEFENDANT
RULING
The Plaintiff, Esther Chesang Soi, avers in the Plaint to the suit herein that she is the proprietor of the land known as Kericho/Chamagel/176/ which is registered under the Registered Land Act, Cap 300. She avers that she has indefeasible and absolute title to it. In the Plaint filed by her on 2/11/2010, she also avers that the Defendant, Wilson Makeret Soi, moved into the said land in the year 2009 without her consent or color of right and that he took possession of the same and started erecting structures on it and commenced farming activities including burning bricks in total disregard of the Plaintiff’s proprietory interest. The Plaintiff seeks in the suit an order for vacant possession and eviction of the defendant therefrom. He also seeks a permanent injunction to restrain the defendant, his servants, agents and/or persons claiming through him from trespassing.
The defendant was served with summons to enter appearance on 8/11/2010 and on 6/12/2010, he entered appearance through his advocates, Messrs Koech K. J. & Co. No defence has hitherto been filed.
On 2/11/2010, before service of summons had even been effected and before the defendant had entered appearance, the Plaintiff lodged the Chamber Summons application dated 2/11/2010 seeking an interlocutory injunction order to the effect that the Respondent be restrained from entering into the suit land and from dealing or interfering with the suit land.
The application came up for inter parties hearing on 8/12/2010. Mr. E.A. Miruka appeared for the Plaintiff while Mr. G.M. Maengwe advocate appeared for the Defendant. At the behest of Mr. Maengwe who held brief for Mr. J.K. Koech, Advocate for the Defendant, the hearing was adjourned to 26/1/2011 when it was heard. On that day, the Defendant and his Counsel did not attend Court, nor had any defence been filed although the period of filing defence had elapsed. The Defendant too had not filed either grounds of opposition to the application or a replying affidavit. But clearly the Defendant was aware of the application and appeared to have been served and that is why he had legally been represented on 8/12/2010.
The orders sought in the application, if granted, will preempt the hearing. Such orders, if granted, would result in the case being determined before it is heard.
As the Defendant has failed to file defence, the suit should proceed to
ex parte hearing at which the plaintiff may adduce evidence with a view to obtain the orders he seeks.
The application dated 2/11/2010 is disallowed but there will be no order as to costs.
DATEDat KERICHO this 7th day of March 2011
G.B.M KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. E. A. Miruka, Advocate, for the Plaintiff
Mr. Maengwe, holding brief for, Mr. J. K. Koech, Advocate, for the Defendant
Mr. Bett, Court clerk