[2022] KEELC 2116 (KLR)
The court found that there were already existing and subsisting injunction orders in favour of the plaintiff, restraining the defendants from making permanent structures on the suit land, which were consented to on 19.6.2014 and had not been appealed, set aside, or vacated. Granting further interim orders as sought...
Source-derived case information.
- Citation
- [2022] KEELC 2116 (KLR)
- Parties
- Plaintiff: Jason Kiamba Kimbui; Plaintiff: Loise Nyegera Kimbui; Defendant: Francis Kamilinchui; Defendant: Festus Kinyua; Defendant: James Kailemia; Defendant: Edward Kaibiria; Defendant: Joseph Mungania Runju; Defendant: Julius Ntongai; Defendant: Kayuyu M’Takuabi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Land Inhibition, Registered Land Disputes, Succession and Administration, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jason Kiamba Kimbui
Plaintiff
Loise Nyegera Kimbui
Plaintiff
Francis Kamilinchui
Defendant
Festus Kinyua
Defendant
James Kailemia
Defendant
Edward Kaibiria
Defendant
Joseph Mungania Runju
Defendant
Julius Ntongai
Defendant
Kayuyu M’Takuabi
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the defendants are entitled to interim orders of inhibition and temporary injunction restraining the plaintiff from interfering with their use and occupation of L.R No. Kianjai/Mituntu/77.
- 2 Whether the existence of prior subsisting injunction orders precludes the grant of further interim orders.
- 3 Whether the plaintiff's actions amount to a threat of alienation or prejudice to the defendants' counterclaim.
Ratio Decidendi
The court found that there were already existing and subsisting injunction orders in favour of the plaintiff, restraining the defendants from making permanent structures on the suit land, which were consented to on 19.6.2014 and had not been appealed, set aside, or vacated. Granting further interim orders as sought by the defendants would not serve the interests of justice and would amount to duplicating existing orders. The court emphasized the need to avoid conflicting or overlapping orders and noted the parties' reluctance to prosecute the main suit. Accordingly, the application for further interim orders was dismissed, and the existing orders were directed to remain in force for one...
Court Disposition
application dismissed with costs
Orders
- The application dated 28.9.2021 is dismissed with costs.
- The subsisting injunction orders shall remain in force for one year, after which they shall stand vacated if the suit is not prosecuted.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 60 OF 2019
JASON KIAMBA KIMBUI.......................................................PLAINTIFF
LOISE NYEGERA KIMBUI........................SUBSTITUTED PLAINTIFF
VERSUS
FRANCIS KAMILINCHUI...........................................1ST DEFENDANT
FESTUS KINYUA.........................................................2ND DEFENDANT
JAMES KAILEMIA.....................................................3RD DEFENDANT
EDWARD KAIBIRIA...................................................4TH DEFENDANT
JOSEPH MUNGANIA RUNJU...................................5TH DEFENDANT
JULIUS NTONGAI......................................................6TH DEFENDANT
KAYUYU M’TAKUABI.............................................7TH DEFENDANT
RULING
1. Before the court is a notice of motion dated 28. 9.2021 seeking for inhibition, a temporary injunction orders barring and restraining the plaintiff from interfering with the defendants’ use and occupation of L.R No. Kianjai/Mituntu/77. The application is supported by an affidavit of James Kailemia sworn on 28. 9.2021.
2. The grounds upon which the application is made are: the land is registered in the name of Jason Kiamba the deceased plaintiff but now represented by the widow who is alienating the land to one Isaack Munene who is threatening to start construction works therein; the plaintiff has sought for the letters of administration hence there is a likelihood of distribution of the property to third parties which shall prejudice the defendants’ counterclaim.
3. The application is opposed by the plaintiffs through a replying affidavit sworn on 4. 11. 2021. She claims to be the registered owner of the suit land since 1965 which measures approximately 34 acres and out of which they have developed 24 acres with the matrimonial home, a hospital facility by the name Sanitas Family Hospital, funeral home by the name St. Marks, Miraa plantation, dairy farming project and a perimeter fence.
4. Secondly, it is stated the deceased filed Meru HC ELC No. 47 of 2014 during his lifetime and in which a similar application as the instant orders were sought and granted on 19. 4.2014 which consent order still subsists hence there is no purported attempt to evict the applicants.
5. Thirdly it is stated Karambu Kiamba and Isaack Munene have their houses on her side and have no intention of interfering with the applicants’ portion hence the claim is baseless.
6. Fourthly it is stated the earlier orders were clear the applicants should not erect any permanent structures which fact the 1st defendants before his death notified the 2nd – 7th defendants as per the annextures to the replying affidavit.
7. Having gone through the application, the replying affidavit and the court file, what comes out clearly is that there are existing orders of injunction issued in favour of the plaintiff restraining the defendants from making permanent structures on the suit land and which orders were consented to on 19. 6.2014. The said orders have not been appealed against, set aside and or vacated.
8. In the premises it is not in the interest of justice to grant any more interim orders at this juncture. The parties have also shown reluctancy in prosecuting the suit for reasons not very clear.
9. In order to fast-track this matter, the subsisting orders shall remain in force for a period of one year otherwise they shall stand vacated.
10. The application dated 28. 9.2021 lacks merit and is therefore dismissed with costs.
11. Parties to comply with Order 11 and attend case conference within 45 days from the date hereof.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 19TH DAY OF JANUARY, 2022
In presence of:
Aketch for plaintiff/respondent
Miss Mbogo for defendant
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE