[2005] KEHC 531 (KLR)
The court found that granting the temporary injunction sought by the plaintiff would effectively amount to evicting the defendant from the suit premises, thereby determining the main issue of the suit at an interlocutory stage. The court further held that the plaintiff had not satisfied the conditions necessary for...
Source-derived case information.
- Citation
- [2005] KEHC 531 (KLR)
- Parties
- Plaintiff: Fredrick Wekesa Mwanja; Defendant: Philip Muchai Mwasame
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 34 of 2004
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Injunctions, Eviction, Land Ownership, Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Wekesa Mwanja
Plaintiff
Philip Muchai Mwasame
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from trespassing on parcel no KAKAMEGA/LUANDETI/1291 pending determination of the suit.
- 2 Whether granting the injunction would amount to determining the main suit at an interlocutory stage.
- 3 Whether the plaintiff has demonstrated the conditions necessary for the grant of an interlocutory injunction.
Ratio Decidendi
The court found that granting the temporary injunction sought by the plaintiff would effectively amount to evicting the defendant from the suit premises, thereby determining the main issue of the suit at an interlocutory stage. The court further held that the plaintiff had not satisfied the conditions necessary for the grant of an interlocutory injunction, as he failed to demonstrate that he would suffer irreparable loss or that the balance of convenience was in his favour. Consequently, the application for injunction was dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The plaintiff's chamber summons for injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Civil Suit 34 of 2004
FREDRICK WEKESA MWANJA…………….…......................……….PLAINTIFF
VS
PHILIP MUCHAI MWASAME………………........................……….DEFENDANT
R U L I N G
Fredrick Wekesa Mwanja the plaintiff, filed an action against Philip Muchai Mwasame by way of a plaint in which his main prayer is for the eviction of the defendant. The plaint is dated 12th March 2004. At the same time the plaintiff also filed a chamber summons pursuant to the provisions of sections 3, 3A & 63 (c ) of the Civil Procedure Act and Order XXXIX rules 1, 2(1) & (2), 3 and 9 of the Civil Procedure Rules. In the summons the plaintiff sought for an order of injunction to restrain the defendant from trespassing into parcel no KAKAMEGA/LUANDETI/1291 pending the hearing and determination of the suit. The plaintiff filed two affidavits in support of the summons. This application was opposed by the defendant who filed a replying affidavit and grounds of opposition.
The plaintiff avers that the defendant in the year 2003, forcefully and illegally trespassed into his parcel land without any colour of right. He exhibited a copy of the title to show that he is the registered proprietor. He complains that the defendant commenced putting up temporary structures and threatens to forcefully cultivate the suit premises. He now wants this court to issue an order of injunction to bar the defendant otherwise he would suffer irreparable loss.
The defendant challenged the plaintiff’s assertion saying that the title was obtained by fraud. He averred that he has been in occupation of the suit land for the last forty years. The Respondent further raised an issue which I think should be considered first before taking into account other arguments, that is to say that to grant the orders of injunction would determine this suit at an interlocutory stage.
I have already stated that the main prayer in the plaint is for an order of eviction. If an order of a temporary injunction is granted it means the Respondent will be barred from the suit premises hence he will have been effectively evicted. There will be nothing that will remain for this court to go for trial.
Even if I am found to be wrong over this issue, I am not satisfied that the applicant has met the conditions necessary for the grant of the orders of injunction. He has not shown that he would likely suffer an irreparable loss or he would most be inconvenienced. In the circumstances I am inclined to dismiss the summons with costs to the respondent, those are the orders of the court.
DATED THIS 21st DAY OF January 2005
J.K. SERGON
JUDGE