[2017] KEHC 695 (KLR)
The court declined to render a ruling on the appellant's application for a temporary injunction and stay of proceedings because the 2nd respondent's replying affidavit, which was referenced in prior proceedings and responded to by the appellant, was missing from the court record. The absence of this affidavit would...
Source-derived case information.
- Citation
- [2017] KEHC 695 (KLR)
- Parties
- Appellant: Grace Mugure; Respondent: The Manager, Mwea Irrigation Settlement; Respondent: Daniel Gikaru Njenga; Respondent: Hezron Giteri Murimi
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2 of 2013
- Procedural Posture
- Civil Appeal / Interlocutory Application for Injunction and Stay Pending Appeal
- Outcome
- No determination on the merits; directions issued for production of missing affidavit.
- Judges
- LW Gitari
- Legal Topics
- Interlocutory Injunctions, Stay of Proceedings, Possession and Use of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Mugure
Appellant
The Manager, Mwea Irrigation Settlement
Respondent
Daniel Gikaru Njenga
Respondent
Hezron Giteri Murimi
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Injunction and Stay Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a temporary injunction restraining the 2nd respondent from transferring or interfering with Rice Holding No. 1733 Unit 4 Mwea Irrigation Scheme pending appeal.
- 2 Whether proceedings in SRM CC No. 191/2012 should be stayed pending the determination of the appeal.
- 3 Whether the court can proceed to determine the application in the absence of the 2nd respondent's replying affidavit.
Ratio Decidendi
The court declined to render a ruling on the appellant's application for a temporary injunction and stay of proceedings because the 2nd respondent's replying affidavit, which was referenced in prior proceedings and responded to by the appellant, was missing from the court record. The absence of this affidavit would render any determination unfair, as the court would not have the benefit of considering all parties' arguments and evidence. The court therefore directed the 2nd respondent to avail a copy of the replying affidavit to enable a fair and informed ruling on the application.
Court Disposition
No determination on the merits; directions issued for production of missing affidavit.
Orders
- The 2nd respondent is directed to avail a copy of the replying affidavit to the court.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
CIVIL APPEAL NO. 2 OF 2013
GRACE MUGURE....................APPLICANT/APPELLANT
-VERSUS-
THE MANAGER, MWEA
IRRIGATION SETTLEMENT...............1ST RESPONDENT
DANIEL GIKARU NJENGA..................2ND RESPONDENT
HEZRON GITERI MURIMI..................3RD RESPONDENT
ORDER
The appellant has filed an application dated 15th January, 2013 seeking a temporary injunction against the 2nd Respondent to restrain him and his agents from transferring, surrendering Rice Holding No. 1733 Unit 4 Mwea Irrigation Scheme and/or interfering with her possession, use and enjoyment of 2 acres of the said Rice Holding pending hearing and determination of the appeal. In addition, she sought stay of proceedings in SRM CC No. 191/2012 pending the hearing and determination of this appeal.
I have perused the record and noted that the 2nd Respondent’s replying affidavit is missing from the record. This despite the fact that on 4th February, 2013 when the matter was before Hon. Justice Wakiaga, Miss Munene for the applicant informed the Judge that she was served with a replying affidavit and grounds of objection. The Court granted her leave to file a further affidavit. Subsequently the appellant’s supplementary affidavit was filed in response to the said replying affidavit.
The replying affidavit seems to have been misplaced. It would not be fair to render the ruling in the application without the benefit of considering the said replying affidavit.
I direct that the 2nd Respondent do avail a copy of the replying affidavit to enable the Court to give an informed ruling in the matter.
Dated and delivered at Kerugoya this 20th day of December, 2017.
L. W. GITARI
JUDGE
Read out in open court, M/s Kiragu holding brief for Wangechi Munene for appellant, M/s Thungu for 2nd Respondent absent, court assistant Naomi Murage this 20th day of December, 2017.
L. W. GITARI
JUDGE
20. 12. 2017