[2012] KEHC 2631 (KLR)
The court found that the plaintiff, as the apparent owner of the land, had demonstrated a prima facie case with a probability of success and that they would suffer irreparable harm if the injunction was not granted, as the damages from demolition would not be quantifiable at this stage. The court therefore granted...
Source-derived case information.
- Citation
- [2012] KEHC 2631 (KLR)
- Parties
- Plaintiff: Francis Kariuki Mwangi T/A Interfrann African; Defendant: The County Council of Olkejuado
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 107 of 2012
- Procedural Posture
- Environmental and Land Case / Interlocutory Application for Injunction
- Outcome
- Application allowed in part; interlocutory injunction granted; costs in the cause.
- Judges
- GMA Dulu
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Land Possession, Nullification of Notices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kariuki Mwangi T/A Interfrann African
Plaintiff
The County Council of Olkejuado
Defendant
Procedural Posture
Environmental and Land Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of a temporary injunction.
- 2 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
- 3 Whether the court should declare the notices issued by the defendant null and void at the interlocutory stage.
Ratio Decidendi
The court found that the plaintiff, as the apparent owner of the land, had demonstrated a prima facie case with a probability of success and that they would suffer irreparable harm if the injunction was not granted, as the damages from demolition would not be quantifiable at this stage. The court therefore granted the interlocutory injunction. However, the court declined to declare the notices null and void at the interlocutory stage, reasoning that such a declaration would amount to a substantive determination of the suit, which is inappropriate before the full hearing.
Court Disposition
Application allowed in part; interlocutory injunction granted; costs in the cause.
Orders
- Temporary injunctive orders granted pending the hearing and determination of the suit.
- Prayer for declaration of notices as null and void declined at interlocutory stage.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MACHAKOS
Environmental & Land Case 107 of 2012
FRANCIS KARIUKI MWANGI
T/A INTERFRANN AFRICAN …………………………..………….. PLAINTIFF/APPLICANT
VERSUS
THE COUNTY COUNCIL OF OLKEJUADO ……….....… DEFENDANTS/RESPONDENTS
R U L I N G
In this Notice of Motion dated 5th April 2012, the court has been requested under prayer 5 to grant temporary injunctive orders, pending the hearing and determination of the suit. Under prayer 6, the court has been asked to declare two notices issued by the defendants to be null and void.
The application, though served, is unopposed. In my view, the fact that plaintiffs are the apparent owners of the land in question, they have demonstrated a prima facie case with probability of success. They have also demonstrated that if injunction is not granted, they will suffer irreparable damage. If their properties are demolished in the meantime, the damages suffered are not at present quantifiable in terms of damages. I will grant the interlocutory injunction, for the above reasons and since the application is unopposed.
On the prayer requesting that I declare the notices as null and void, in my view, such an order should not be granted at an interlocutory stage. It will have the effect of determining the whole suit which has been commenced by way of a plaint. An order determining the suit substantively should not be issued by the court at an interlocutory stage.
Consequently, I allow the application and grant prayer 5. Costs in the cause.
Dated and delivered at Machakos this 9thday ofJuly2012.
………………………………………
George Dulu
Judge
In the presence of:
Mr Mutinda Kimeu h/b for Mr Ngugi for Plaintiff
N/A for Defendant
Nyalo – Court clerk