[2019] KEHC 11043 (KLR)
The court found that the applicant was not entitled to an injunction because the land in question, Dagoretti/Uthiru/222, had already been subdivided and transferred to third parties who were not joined in the proceedings. It is a settled principle that an injunction cannot be issued against landowners who are not...
Source-derived case information.
- Citation
- [2019] KEHC 11043 (KLR)
- Parties
- Applicant: Grace Njeri Kingangi; Respondent: Dedan Thiong’o John; Respondent: Walter Gitau John; Respondent: Lizie Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 793 of 1985
- Procedural Posture
- Succession Cause / Ruling on Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule, A Ali-Aroni
- Legal Topics
- Injunction Pending Appeal, Revocation of Grant, Third Party Rights, Land Subdivision, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Njeri Kingangi
Applicant
Dedan Thiong’o John
Respondent
Walter Gitau John
Respondent
Lizie Njoroge
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an injunction restraining the respondents from interfering with her use of the quarry on Dagoretti/Uthiru/222 pending appeal.
- 2 Whether an injunction can issue where the land has been subdivided and transferred to third parties not joined in the proceedings.
- 3 Whether a negative order (dismissal of revocation application) can be stayed or injuncted.
Ratio Decidendi
The court found that the applicant was not entitled to an injunction because the land in question, Dagoretti/Uthiru/222, had already been subdivided and transferred to third parties who were not joined in the proceedings. It is a settled principle that an injunction cannot be issued against landowners who are not parties to the suit. Furthermore, the judgment being appealed against was a negative order (dismissal of the application for revocation of grant), and the law is clear that negative orders cannot be stayed or injuncted. Therefore, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application by the applicant is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO.793 OF 1985
IN THE MATTER OF THE ESTATE OF JOHN KING’ANG’I THIONG’O (DECEASED)
GRACE NJERI KINGANGI..........................................................APPLICANT
VERSUS
DEDAN THIONG’O JOHN................................................1ST RESPONDENT
WALTER GITAU JOHN....................................................2ND RESPONDENT
LIZIE NJOROGE..............................................................3RD RESPONDENT
RULING
1. The deceased John King’ang’i Thiong’o died on 31st January 1975. His estate comprised of LR No. Dagoretti/Uthiru/222 and Dagoretti/Uthiru/T.340-Kiambu. The grant was issued to the respondents on 3rd December 1987 and confirmed on 20th September 1988. On 3rd May 2012, the applicant sought to have the grant revoked on the grounds that it was obtained fraudulently by making a false statement and concealment to court of something material to the cause. The application was dismissed on 10th May 2016.
2. The applicant filed summons dated 17th January 2017 seeking that the respondent, their servants and agents be restrained from interfering with the applicant’s use of the quarry already in use on Dagoretti/Uthiru/222 pending hearing and determination of the appeal to the court of appeal.
3. The application was supported by the applicant’s affidavit dated 17th January 2017. It was her case that during the deceased’s lifetime and during the proceedings of this case she was excavating stones for sale for her upkeep on Dagoretti/Uthiru/222. However, the respondents have now illegally stopped her from accessing the quarry as a result causing her great emotional and financial stress.
4. The 3rd respondent filed the grounds of opposition on 17th May 2018, on the grounds that the parcel Dagoretti/Uthiru/222 was subdivided in 1992 and was transferred to 3rd parties.
5. The 1st and 2nd respondents did not file their replying affidavit.
6. I have considered the application, the response and the written submissions. The question to be determined is whether the applicant has made a case for the grant of injunction pending the hearing and determination of the appeal that was preferred against the judgment dismissing her application for the revocation of the grant that had been issued to the respondents.
7. It is material that in the judgment it was pointed out that the deceased’s land parcel Dagoretti/Uthiru/222 was subdivided and respective portions sold and transferred to 3rd parties. The 3rd parties were not made parties to these proceedings. It is trite that an injunction cannot issue against an owner of land without reference to him.
8. Secondly, it is now law that negative orders are incapable of execution and hence cannot be stayed or injuncted (Raymond M. Omboga –v- Austine Ryan Maranga, HCCA No. 15 of 2010). The judgment being appealed against was a negative one. It dismissed the applicant’s application for revocation.
9. In conclusion, I find no merit in the application by the applicant. I dismiss the same with costs.
DATED and SIGNED at NAIROBI this 5TH day of FEBRUARY 2019.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 12TH day of FEBRUARY 2019.
ALI-ARONI
JUDGE