[2009] KEHC 2426 (KLR)
The court found that the applicant had not included a prayer for an injunction in the plaint, which is a prerequisite for granting interlocutory injunctive relief. Furthermore, the respondent was already in occupation of the disputed parcels, making an interlocutory injunction inappropriate; the proper remedy in...
Source-derived case information.
- Citation
- [2009] KEHC 2426 (KLR)
- Parties
- Plaintiff: George Miruka; Defendant: Robert Ontonye alias Nyamira
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Interlocutory Injunctions, Land Ownership Disputes, Joint Ownership, Mandatory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Miruka
Plaintiff
Robert Ontonye alias Nyamira
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from trespassing on the suit parcels of land.
- 2 Whether an interlocutory injunction can be granted where the respondent is already in occupation of the disputed land.
- 3 Whether the applicant, as a joint owner, has locus standi to bring the suit without involving other co-owners.
Ratio Decidendi
The court found that the applicant had not included a prayer for an injunction in the plaint, which is a prerequisite for granting interlocutory injunctive relief. Furthermore, the respondent was already in occupation of the disputed parcels, making an interlocutory injunction inappropriate; the proper remedy in such circumstances would be a mandatory injunction, which was not sought. The applicant, being a joint owner, also lacked authority to bring the suit without involving the other co-owners. The respondent's allegations of fraud in the acquisition of the parcels were deemed matters for the succession court, not the present forum. Consequently, the application for interlocutory...
Court Disposition
application dismissed with costs
Orders
- The application for interlocutory injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 56 of 2009
GEORGE MIRUKA ………………………………………... PLAINTIFF
VERSUS
ROBERT ONTONYE alias NYAMIRA ………………… DEFENDANT
RULING
The Applicant/Plaintiff George Miruka filed this suit seeking that the Respondent/Defendant be evicted from his parcels of land WEST KITUTU/MWAKIBAGENDI/1930 and 1931. He claimed that the Respondent had since 12th February, 2009 unlawfully entered into the parcels, erected a house thereon, and is cultivating the same. With the plaint was filed, under Certificate of Urgency, a Chamber Application under Order 39 rules 1 and 2 of the Civil Procedure Rules and section 3Aof the Civil Procedure Act seeking interlocutory injunction against the Respondent, his agents, and or servants from trespassing upon the parcels. The application was opposed by the Respondent who filed a Replying Affidavit.
The Applicant was represented by Mr. Sagwe and the Respondent by Mr. Anyona. I have considered their submissions.
The prayers in the Plaint did not include one for injunction. The request for interlocutory injunction can therefore not be granted (Southern Credit Banking Corp. Ltd. vs. Charles Wachira Ngando, HC (Milimani) CC No.1780 of 2000). Further, the Supporting Affidavit shows that the Respondent has gone into occupation of the disputed parcels and is using them. An interlocutory injunction can only be issued where a Respondent has not yet taken possession of the land. It is granted to prohibit a Respondent who is threatening to enter the land (Yego v. Tuiya & Another [1986] KLR 726). Where, like in this case, the Respondent is already is occupying of the disputed land it is a mandatory injunction that should be sought, if the intention is that, pending the resolution of the case, he vacates the land.
The Title Deed annexed to the Supporting Affidavit shows the Applicant is a joint owner of parcel 931 with one Evans Omariba Miruka. The Replying Affidavit raised the issue that the Applicant is registered jointly with other people in respect of the lands. The Applicant has no authority to bring this suit without involving Evansand these other people.
The Respondent has complained that the Applicant and other people fraudulently got the parcels and others during the succession cause in respect of the Estate of the late Sunya Otieri. He is at liberty to go back to the succession court to seek revocation of the grant. This is not the forum for such complaint.
I dismiss the application with costs.
Dated and Delivered at Kisii this 22ndday of June 2009
A.O. MUCHELULE
JUDGE
22. 6. 2009
Before A. O. Muchelule Judge
Mongare c/c
M/s Asati for Mr. Anyona for applicant
Court: Ruling in open court.
A.O. MUCHELULE
JUDGE