[2017] KEELC 1451 (KLR)
The court declined to grant the ex parte temporary injunction because the applicants failed to provide sufficient particulars regarding the status of a similar case (ELC No. 102/15) in which injunctive orders had already been obtained against the 1st respondent. The court emphasized that, in the absence of clarity...
Source-derived case information.
- Citation
- [2017] KEELC 1451 (KLR)
- Parties
- Applicant: John Ntoiti Mugambi, Emily Mutua K & Isaiah Mwiti Mungathia (officials of Isiolo Stage View Enterprises C.B.O, acting in the interest of its members); Respondent: Isiolo County Government; Respondent: The Inspector General of Police; Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 14 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Ex Parte Application for Temporary Injunction
- Outcome
- Ex parte application for temporary injunction declined; matter to be heard on priority basis inter partes.
- Legal Topics
- Right to Property, Eviction, Injunctive Relief, Fundamental Rights, Market Premises Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Ntoiti Mugambi, Emily Mutua K & Isaiah Mwiti Mungathia (officials of Isiolo Stage View Enterprises C.B.O, acting in the interest of its members)
Applicant
Isiolo County Government
Respondent
The Inspector General of Police
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Ex Parte Application for Temporary Injunction
Legal Issues
- 1 Whether the petitioners are entitled to an ex parte temporary injunction restraining the respondents from interfering with their business premises pending the hearing and determination of the application and main petition.
- 2 Whether the alleged forcible eviction constituted a violation of fundamental rights, including the right to life and property.
Ratio Decidendi
The court declined to grant the ex parte temporary injunction because the applicants failed to provide sufficient particulars regarding the status of a similar case (ELC No. 102/15) in which injunctive orders had already been obtained against the 1st respondent. The court emphasized that, in the absence of clarity on the parallel proceedings, it would be inappropriate to grant further ex parte relief. Additionally, the court noted that the main relief sought in the petition involved a declaration on the violation of fundamental rights, which required a determination of the parties' rights and interests in the suit property and could not be resolved ex parte. The court therefore directed...
Court Disposition
Ex parte application for temporary injunction declined; matter to be heard on priority basis inter partes.
Orders
- The ex parte application for temporary injunction is declined.
- The matter (both the application and the petition) shall be heard on a priority basis.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
CONSTITUTION PETITION NO. 14 OF 2017
IN THE MATTER OF: ARTICLE 2, 3, 6, 10, 19,21,22,23,25,26,27,28,29,35,37,40,43,47,48,50,165, 186 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF:CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 26 (1), (3), 27(1), (2),28,29(c) (d) 17 ,40 & 43 OF THE CONSTITITUON AND RULE 11 ( C) AND 12 THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULE, 2013 AND ALL OTHER RELEVANT ENABLING POWER & PROVISION OF THE LAWS OF KENYA.
AND
IN THE MATTER OF: ARTICLE 25 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
BETWEEN
JOHN NTOITI MUGAMBI, EMILY MUTUA K
& ISAIAH MWITI MUNGATHIA officials of theISIOLO STAGE
VIEW ENTERPRISES C.B.O
(Acting in the interest of its members)..........................................................................PETITIONERS
AND
ISIOLO COUNTY GOVERNMENT..............................................................................1ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE................................................................2ND RESPONDENT
THE HON. ATTORNEY GENERAL.............................................................................3RD RESPONDENT
RULING
The Court has been urged to grant prayer No. 2 in the application of 28:09: 17 which is to the effect that “an order of Temporary Injunction be issued to restrain the respondent jointly and severally by themselves, agents, servants, assigns, representations, unions supervisors herein by from interfering and/or removing, evicting , constructing and desist from blocking the Applicants from carrying out their business in the manner and the places they were carrying their business before the fire gutted down there business premises pending hearing and determination of this application and the main petition”.
A perusal of the documents availed by the Applicant reveals that there is (or there was) a similar case ELC No. 102/15 where the Petitioners had obtained Injunctive Orders against 1st Respondent. The Court has not been told as to what are the status of this case. In absence of any further particulars regarding the ELC case, I would be reluctant to grant any orders Exparte.
Secondly, I find that prayer 1 in the petition is an order for “declaration that the forcible violence and brutal eviction of the Petitioners members from their business establishment within the main market within Isiolo County……..is a violation of fundamental right to life”. The Court cannot therefore grant the orders Exparte as it has to determine the rights and interests of the petitioners in the Suitland.
I therefore decline to grant the orders Exparte.
Instead, I direct that the matter be heard on priority basis (both the application and the Petition).
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 3rd DAY OF OCTOBER, 2017 IN THE PRESENCE OF:
CA: Janet
Ashaba for Petitioner/ Applicant Present
Hon. L.N. MBUGUA
ELC JUDGE