[2014] KEHC 7384 (KLR)
The court found that the applicant had demonstrated ownership of the suit premises and that the injunction order had been obtained without proper notification to the applicant and without disclosure of material facts. The respondents failed to take any steps to have the case heard and determined after obtaining the...
Source-derived case information.
- Citation
- [2014] KEHC 7384 (KLR)
- Parties
- Plaintiff: Fredrick Kioko Mutunga; Plaintiff: Albert Nthama Mutunga; Defendant: Martin Mutunga Kioko
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 137 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Discharge Injunction
- Outcome
- application allowed; injunction discharged
- Judges
- LN Mutende
- Legal Topics
- Interlocutory Injunctions, Discharge of Injunctions, Non Disclosure, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kioko Mutunga
Plaintiff
Albert Nthama Mutunga
Plaintiff
Martin Mutunga Kioko
Defendant
Procedural Posture
Civil Case / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether the interlocutory injunction granted on 17th February 2005 should be discharged or set aside.
- 2 Whether the applicant was denied a fair hearing due to lack of notification of the proceedings.
- 3 Whether the plaintiffs/respondents obtained the injunction through non-disclosure or concealment of material facts.
Ratio Decidendi
The court found that the applicant had demonstrated ownership of the suit premises and that the injunction order had been obtained without proper notification to the applicant and without disclosure of material facts. The respondents failed to take any steps to have the case heard and determined after obtaining the injunction, and did not respond to the application to discharge the order. The court held that the reasons advanced by the applicant were sufficient to warrant the discharge of the injunction, especially in light of the lapse of time and lack of prosecution of the main suit. Accordingly, the injunction order issued against the defendant/applicant was discharged.
Court Disposition
application allowed; injunction discharged
Orders
- The injunction order issued against the Defendant/Applicant is hereby discharged.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 137 OF 2004
FREDRICK KIOKO MUTUNGA ..................1ST PLAINTIFF/RESPONDENT
ALBERT NTHAMA MUTUNGA ................2ND PLAINTIFF/RESPONDENT
VERSUS
MARTIN MUTUNGA KIOKO ................................................RESPONDENT
RULING
On the 17th February 2005 the Court granted a temporary injunction order restraining the Defendant/ Applicant herein from selling, transferring or charging Parcel Nos Matungulu/Sengani/863, 1407 and 2095 (hereinafter the suit premises )and from burning or pulling down the plaintiff’s houses or evicting them from the plot pending hearing and determination of the suit.
In an application dated 4th December 2013 the Applicant seeks to have the injunctive order granted discharged and/or set aside. It is premised on grounds that the applicant was never notified of the proceedings; the Plaintiff/Respondents are using the court to intimidate the applicant; the respondents failed to disclose material facts to the court and it is in the interest of justice that the orders sought be granted.
In an affidavit in support of the application, the Applicant depones that he is the sole legal owner of the suit premises; he became aware of injunctive orders when he visited Machakos Lands Office in the year 2013; the Plaintiff /Respondent obtained orders fraudulently following non-disclosure and concealment of material facts; and the orders are being used as a weapon of intimidation and threats.
The application was served on the Respondents advocate on the 11th December, 2013. No response was filed. On the hearing date there was no appearance. The application was therefore uncontroverted. The applicant has also annexed to the supporting affidavit a title deed for Matungulu/Sengani/863 which is in his name. He has demonstrated ownership of the said parcel of land.
Order 40 rules (6) and (7) of the Civil Procedure Rules stipulate as follows:-
”(6) Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of 12 months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.
(7) Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”
The reason given by the applicant is sufficient to have the order granted discharged. The Plaintiff/Respondent on obtaining the order sought failed to take any step to have the case heard and determined. This court has no reason to deny the applicant the order sought.
It is therefore ordered that the injunction order issued against the Defendant/Applicant be and is hereby discharged.
No orders as to costs.
DATED, DELIVERED and SIGNEDthis 21STday of JANUARY, 2014.
L.N. MUTENDE
JUDGE