[2021] KEELC 1334 (KLR)
The court found that the applicant's present application for an interlocutory injunction was superfluous and an abuse of court process because a similar application had previously been made and determined, resulting in subsisting status quo orders. The court emphasized that the existing orders already protected the...
Source-derived case information.
- Citation
- [2021] KEELC 1334 (KLR)
- Parties
- Plaintiff: Isaac Ngubo Osindi; Defendant: Gichere Nyabando; Defendant: Christopher Maubi Okindo Nyabando
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case13 of 2016
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the defendants/respondents
- Judges
- DO Ogal
- Legal Topics
- Interlocutory Injunctions, Status Quo Orders, Proprietary Rights, Revocation of Title, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Ngubo Osindi
Plaintiff
Gichere Nyabando
Defendant
Christopher Maubi Okindo Nyabando
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondents from interfering with his possession of the suit property pending determination of the main suit.
- 2 Whether the application is res judicata or an abuse of court process given the existence of a prior similar application and subsisting status quo orders.
Ratio Decidendi
The court found that the applicant's present application for an interlocutory injunction was superfluous and an abuse of court process because a similar application had previously been made and determined, resulting in subsisting status quo orders. The court emphasized that the existing orders already protected the applicant's interests by restraining any sale or felling of trees on the suit property until the main suit is heard. As such, there was no justification for entertaining a fresh application seeking the same relief. The court concluded that the proper course for the parties was to proceed to the hearing of the main suit rather than filing repetitive interlocutory applications.
Court Disposition
application dismissed with costs to the defendants/respondents
Orders
- The application dated 18th November, 2019 is dismissed with costs to the defendants/respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURTAT KISII
ELC CASE NO. 13 OF 2016
ISAAC NGUBO OSINDI..................................PLAINTIFF/ APPLICANT
-VERSUS-
GICHERE NYABANDO.......................1ST DEFENDANT/RESPONDENT
CHRISTOPHER MAUBI
OKINDO NYABANDO...........................2ND DIFENDANT/RESPONDENT
RULING
INTRODUCTION
1. On 18th November, 2019, the Plaintiff filed a Notice of Motion seeking an interlocutory injunction restraining the Respondents by themselves or their agents and/or servants from interfering with his quiet possession and enjoyment of a portion of a parcel of land known as CENTRAL KITUTU/MWAMWANA/557 pending the hearing and determination of the main suit.
2. The application is based on the grounds set out on the face of the Notice of Motion and the Applicant’s Supporting Affidavit sworn on the 13th November 2019, in which he averred that his father Osindi Nyacheo owned the portion of the suit property which he had been using since 1953. He deponed that the Defendants/Respondents did not have any proprietary interest over the suit property that defeat his rights to the suit property.
3. He further deponed that vide a letter dated 14th November, 2018 the Kisii County Land Registrar revoked all titles that had originated from the suit property which were 2227, 2228, 2229, 2230, 2231, 2232, 2233, 3409, 3418 and 3419 and reverted the title back to the original title, CENTRAL KITUTU/MWAMANWA/557.
4. The Applicant also averred that the Defendants had unlawfully and without any colour of right destroyed his properties with the intention of disposing his portion of the suit property to third parties without his consent.
5. However, before considering the application on merit, upon perusal of the file I have noted that a similar application dated 20th February 2017 was filed by the Applicant in which he sought similar orders.
6. The said Application came up for hearing on 2nd May, 2017 before this court. The court after hearing both parties and after considering that the Defendants were not objecting to the grant of the temporary injunction, directed that the parties maintain and observe the prevailing status quo wherein there would be no sale of the suit property and no felling of trees until the suit is heard.
7. In view of the foregoing, I am of the view that this application is superfluous as the orders of status quo are still in place. The parties ought to focus on having the case set down for hearing as ordered by the court.
8. The upshot is that the application is an abuse of the court process and the same is hereby dismissed with costs to the Defendants/Respondents.
DATED, SIGNED AND DELIVERED AT KISII THIS 27TH DAY OF OCTOBER, 2021.
.............................
J.M ONYANGO
JUDGE