[2018] KEHC 4453 (KLR)
The court found that while the application was urgent and certified it as such for consideration during the recess, the substantive prayers for a temporary injunction and preservation of the body were serious and required the respondent to be served and heard. Granting such orders ex parte would amount to the court...
Source-derived case information.
- Citation
- [2018] KEHC 4453 (KLR)
- Parties
- Applicant: Everlyne C. Inganji; Applicant: Meshack Bulinda Ingati; Respondent: Stephen Ingati Ashaka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 116 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Application for Injunction During Recess
- Outcome
- Application certified urgent; substantive prayers for injunction deferred for inter partes hearing.
- Judges
- RE Aburili
- Legal Topics
- Temporary Injunctions, Burial Disputes, Urgent Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Everlyne C. Inganji
Applicant
Meshack Bulinda Ingati
Applicant
Stephen Ingati Ashaka
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Injunction During Recess
Legal Issues
- 1 Whether the application for a temporary injunction to restrain the respondent from removing the body pending hearing is urgent and should be certified as such.
- 2 Whether the court should grant interim orders ex parte or require inter partes hearing.
Ratio Decidendi
The court found that while the application was urgent and certified it as such for consideration during the recess, the substantive prayers for a temporary injunction and preservation of the body were serious and required the respondent to be served and heard. Granting such orders ex parte would amount to the court prosecuting the application for the applicant, which is improper. Therefore, the court directed that the respondent be served and the matter be set down for inter partes hearing, declining to grant the substantive interim orders at this stage.
Court Disposition
Application certified urgent; substantive prayers for injunction deferred for inter partes hearing.
Orders
- Application certified as urgent for consideration during the recess.
- Applicant or counsel to serve the respondent and appear on 31.8.2018 to urge the application for injunction.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL CASE NO. 116 OF 2018
EVERLYNE C. INGANJI...........................1ST APPLICANT
MESHACK BULINDA INGATI...............2ND APPLICANT
VERSUS
STEPHEN INGATI ASHAKA......................RESPONDENT
(FORWARDED FOR HEARING BY D.R. KISUMU BEFORE VACATION DUTY JUDGE - SIAYA)
COURT RULING:
I have considered the application dated 29th August 2018, brought under the certificate of urgency and seeking to be heard during the recess.
I have premised the application and I am satisfied that the same is urgent. I certify it as urgent for consideration during the recess.
On the prayer for a temporary injunction to restrain the Respondent from removing the body of the later Geraldine Khataha Ingati from Kakamega County Referral Hospital for purposes of interment pending hearing and determination of the application in the first instance and an order that the late Geraldine Khataha Ingati do continue to be kept at Kakamega County Referral Hospital for Prosecution pending hearing and determination of the application interpartes, I note that the prayer sought are serious prayers that require appearance by a party to urge their case. It is not for this Court to attempt to Prosecute the application for the Applicant/Appellant as that would amount to jumping into the arena of the parties’ dispute. In the premises, I direct the Applicant or her Counsel to serve the Respondent and appear on 31. 8.2018 if they wish to have this matter considered, to urge the application for injunction.
Orders accordingly.
Dated, Signed and Delivered at Siaya this 30th day of August, 2018.
R. E. ABURILI
JUDGE