[2010] KEHC 368 (KLR)
The court found that the applicant failed to disclose the existence of a subsisting interlocutory injunction granted in favour of the respondent in the lower court, which was a material non-disclosure disentitling him to equitable relief. Furthermore, the respondent was shown to be the licensee and in occupation of...
Source-derived case information.
- Citation
- [2010] KEHC 368 (KLR)
- Parties
- Appellant: James Muthii Njogu; Respondent: Francis Muya Njogu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 99 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Injunction and Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- J Karanja
- Legal Topics
- Interlocutory Injunctions, Stay of Proceedings, Locus Standi, Rice Holding Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muthii Njogu
Appellant
Francis Muya Njogu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Injunction and Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to injunctive orders against the respondent pending appeal.
- 2 Whether the applicant is entitled to a stay of proceedings in Wanguru SRM Civil Case No. 150/2008.
- 3 Whether the applicant has disclosed all material facts relevant to the application.
Ratio Decidendi
The court found that the applicant failed to disclose the existence of a subsisting interlocutory injunction granted in favour of the respondent in the lower court, which was a material non-disclosure disentitling him to equitable relief. Furthermore, the respondent was shown to be the licensee and in occupation of the rice holding in question, and the law of injunctions does not support restraining a party from their own property. The applicant did not demonstrate a prima facie case with a probability of success on appeal, nor did he show that he would suffer prejudice if the orders sought were not granted. The application was therefore found to be lacking in merit and was dismissed with...
Court Disposition
application dismissed with costs
Orders
- The application dated 21.10.2010 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 99 OF 2010
JAMES MUTHII NJOGU……………....................................................................................................………..……….APPELLANT
VERSUS
FRANCIS MUYA NJOGU…….…………………...........................................................................................….RESPONDENT
R U L I N G
The Applicant in the Application dated 21. 10. 2010 is seeking injunctive orders against the Respondent on Francis Muya Njogu. He is also seeking a stay of proceeding in Wanguru SRM Civil Case No. 150/2008pending the hearing and determination of the Appeal herein. In his supporting affidavit, he has admitted that he was sued by the Respondent herein in Wanguru SRMCC No. 150/08 whereby the Respondent sought for orders of a permanent injunction. What he has not told the court however is that the Respondent herein filed an application for interlocutory orders of injunction which he was granted by that court on 22. 04. 2010. A copy of the ruling is actually annexed to the Respondent’s replying affidavit as annexure FMN1.
He (Applicant) has not even endeavored to explain what happened to that ruling. According to the Respondent, the same is still in force and so the instant application is engineered towards replacing that ruling. I can therefore say even without much ado that the applicant herein has not come to court with clean hands. He had deliberately failed to disclose material that he know is very relevant to this application. That disentitles him from the exercise of this court’s disretion in his favour.
Other than that however, I have studied the entire file and noted the contents of the annexures thereto along with the rival submissions by counsel. I must say that if argued on its own, the preliminary objection would have failed. The issue as to whether the Appellant has locus or not ought to have been determined before the trial court where the suit has yet to be concluded. In any event the Respondent is the one who sued the Appellant before the magistrate’s court and he could not have sued him if he had no locus.
On the issue as to whether the Applicant herein has a prima facie or good Appeal with chances of success, I must answer in the negative. The documents annexed herein clearly shows that the Respondent is the licensee of the rice holding in question since 5. 03. 02. The court cannot injunct him from his own property. He is in occupation and the law of injunctions leans to his favour. The Respondent has deposed that he has no intention whatsoever of disposing of the land in question. This therefore means that the Applicant will not be prejudiced at all if the orders he seeks are not granted. For this and the other reason that there is still a valid injunction against the applicant over the same property, the court finds application misplaced.
I find it totally lacking in merit and I dismiss the same with costs to the Applicant.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 7th day of December 2010
In presence of:- Ms Ndorongo & Nduku Nzuki for Mr. Kiama.