[2013] KEHC 354 (KLR)
The court found that granting the orders sought by the applicant would contravene section 16(2) of the Government Proceedings Act, which prohibits the issuance of injunctions or orders against government officers if such relief could not be obtained directly against the government. Since the orders requested would...
Source-derived case information.
- Citation
- [2013] KEHC 354 (KLR)
- Parties
- Plaintiff: Jackson Matolo Ngeta t/a Aframa General Merchants; Defendant: Director General National Environment Management Authority (NEMA); Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 62 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Injunctive Relief, Government Proceedings, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Matolo Ngeta t/a Aframa General Merchants
Plaintiff
Director General National Environment Management Authority (NEMA)
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can grant an injunction restraining government officers from interfering with the applicant's property in light of section 16(2) of the Government Proceedings Act.
- 2 Whether the applicant is entitled to the release of detained property (tractors and timber) from police custody.
Ratio Decidendi
The court found that granting the orders sought by the applicant would contravene section 16(2) of the Government Proceedings Act, which prohibits the issuance of injunctions or orders against government officers if such relief could not be obtained directly against the government. Since the orders requested would effectively grant relief against the government, the application was dismissed. The absence of opposition from the respondents did not alter the statutory bar imposed by the Act.
Court Disposition
application dismissed
Orders
- The application dated 27/11/2013 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case No. 62 Of 2013
JACKSON MATOLO NGETA
T/AFRAMA GENERAL MERCHANTS……… PLAINTIFF/APPLICANT
VERSUS
DIRECTOR GENERAL NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY (NEMA)
ATTORNEY GENERAL ………………… DEFENDANT/RESPONDENT
R U L I N G
The application dated 27/11/2013 seeks an order that the police from Mbooni Police Station under the Commander of OCS be restrained from stopping the Plaintiff/Applicant from carrying the logs and timber already cut down and/or harvested and the Plaintiff/Applicant be allowed to ferry all the logs and timber without harassment and further the police be ordered to release the two tractors detained at the police station together with the carried timber.
The application is supported by the affidavit of Jackson Matolo Ngeta sworn on 7/11/2013. The thrust of the said affidavit is that the Applicant won a tender to cut down and remove trees from Mbooni Forest in Makueni County. That the Applicant made the requisite payments to Kenya Forest Services and thereafter he proceeded to cut the trees and was subsequently authorized by the 1st Respondent to ferry the harvested logs and timber. However, police officers acting under the instructions of the OCS, Mbooni Police Station stopped the Applicant from transporting the said logs and timber and detained the tractors which were carrying the same. That the logs and timber are at the risk of getting damaged due to the current rains, hence the orders sought.
No papers were field in opposition to the application. An affidavit of service filed herein sworn on 18/12/2013 reflects the 1st and 2nd Respondent were served with the hearing date but they did not enter appearance nor attend court.
I have considered the application. However, section 16 (2) of the Government Proceedings Act Cap 40 Laws of Kenya states as follows:-
“The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government.”
Granting the order sought would contravene the said provision. Consequently, the application fails and is dismissed. Costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20thday of December2013.
………………………………………
B. THURANIRA JADEN
JUDGE