[2020] KEHC 3903 (KLR)
The court found that the issues raised in the application for a temporary injunction are intertwined with the substantive objection proceedings and cannot be adequately addressed at the interlocutory stage. The applicant should have prosecuted the pending objection, where the merits of the dispute and the need for...
Source-derived case information.
- Citation
- [2020] KEHC 3903 (KLR)
- Parties
- Respondent: Collate Anyangot Ochom; Applicant: Tabitha Amukaga Oure
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 173 of 2009
- Procedural Posture
- Probate and Administration / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- KW Kiarie
- Legal Topics
- Injunctive Relief, Probate Disputes, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Collate Anyangot Ochom
Respondent
Tabitha Amukaga Oure
Applicant
Procedural Posture
Probate and Administration / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from interfering with the suit land pending the hearing of the objection proceedings.
- 2 Whether the application raises issues that should be determined within the substantive objection proceedings.
Ratio Decidendi
The court found that the issues raised in the application for a temporary injunction are intertwined with the substantive objection proceedings and cannot be adequately addressed at the interlocutory stage. The applicant should have prosecuted the pending objection, where the merits of the dispute and the need for injunctive relief could be properly canvassed and determined on evidence. As such, the application for a temporary injunction lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION NO. 173 OF 2009
IN THE MATTER OF THE ESTATE OF:
MARTIN OCHOMO OCHEK ……………………………………………….DECEASED
BETWEEN
COLLATE ANYANGOT OCHOM …………………....PETITIONER/ RESPONDENT
AND
TABITHA AMUKAGA OURE…………………………........OBJECTOR/APPLICANT
RULING
1. The objector/applicant herein moved the court by way of Notice of Motion dated 24th February2020 under sections 76(d) (ii) of the Law of succession Act and Rule 73 of Probate and Administration Rules. She is seeking the following orders:
a) That this application be certified as urgent and service be dispensed with in the first instance. [Spent]
b) That this honourable court be pleased to issue a temporary injunction restraining the petitioner/respondent, her agents, servants, employees and/or any person claiming through her from trespassing, cultivating, cutting trees, tilling, erecting on the suit land parcel No. S.Teso/Asinge/1168 pending the hearing of this application inter-partes.
c) That this honourable court be pleased to issue a temporary injunction restraining the petitioner/respondent, her agents, servants, employees and/or any person claiming through her from trespassing, cultivating, cutting trees, tilling, erecting on the suit land parcel No. S.Teso/Asinge/1168 pending the hearing and determination of the objection proceedings.
2. The application is premised on the following grounds:
a) That the respondent who is not in possession of the said suit land parcel No. S. Teso/Asinge/1168 has continued to hire out the same for cultivation and cutting of trees for timber to third parties who are tampering with the existing boundary.
b) That the illegal and unlawful actions of the respondent is intended to circumvent the objection proceeding that is before this honourable court by tampering with existing evidence on the ground.
c) If it is fair and just and for the interest of justice for orders sought herein to be granted.
d) The respondent does not stand to lose if the orders sought is granted.
3. The application was opposed on grounds that:
a) The applicant/objector is not related to the deceased herein; and
b) The application is an abuse of the due process of the court.
4. The current application cannot be adequately addressed. The applicant ought to have prosecuted the pending objection where the issues raised herein can be canvassed by way of evidence.
5. The application lacks merit and is accordingly dismissed.
DELIVERED and SIGNED at BUSIA this 30th day of July, 2020
KIARIE WAWERU KIARIE
JUDGE