[2008] KEHC 2939 (KLR)
The court determined that, as neither the plaintiffs' nor the 1st defendant's substantive applications had been canvassed, it was appropriate to extend the existing interim orders to preserve the subject matter of the dispute. The judge declined to analyze substantive submissions at this stage, emphasizing that any...
Source-derived case information.
- Citation
- [2008] KEHC 2939 (KLR)
- Parties
- Plaintiff: Johnai Okutoi; Plaintiff: Peggy Christine Okutoi; Defendant: Najib Jiwa; Defendant: Standard Chartered Bank (K) Ltd; Defendant: S. Mbuthia
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2 of 2008
- Procedural Posture
- Civil Suit / Interlocutory Application; Ruling on Extension of Interim Injunction Pending Hearing of Substantive Applications
- Outcome
- Interim injunction extended; applications listed for inter partes hearing.
- Legal Topics
- Interim Injunctions, Possession of Land, Preservation of Suit Property, Injunctive Relief, Pending Hearing, Reconstruction of Buildings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnai Okutoi
Plaintiff
Peggy Christine Okutoi
Plaintiff
Najib Jiwa
Defendant
Standard Chartered Bank (K) Ltd
Defendant
S. Mbuthia
Defendant
Procedural Posture
Civil Suit / Interlocutory Application; Ruling on Extension of Interim Injunction Pending Hearing of Substantive Applications
Legal Issues
- 1 Whether the interim injunction restraining the 1st defendant from registering as proprietor and interfering with the plaintiffs' possession should be extended pending hearing of applications.
- 2 Whether both parties should be restrained from dealing with the suit property until determination of the pending applications.
- 3 How best to preserve the subject matter of the dispute pending the hearing and determination of the substantive applications.
Ratio Decidendi
The court determined that, as neither the plaintiffs' nor the 1st defendant's substantive applications had been canvassed, it was appropriate to extend the existing interim orders to preserve the subject matter of the dispute. The judge declined to analyze substantive submissions at this stage, emphasizing that any interim orders made could be set aside by his successor. The extension of the interim injunction was deemed necessary to avoid prejudice to either party and to maintain the status quo until the applications could be heard inter partes by the incoming judge. The court recognized the risk to the plaintiffs if they continued reconstruction and ultimately lost the case, but held...
Court Disposition
Interim injunction extended; applications listed for inter partes hearing.
Orders
- The interim orders dated 8/1/2008 are extended until further orders of this court.
- The applications dated 8/1/2008 and 17/1/2008 are listed for hearing inter partes on 18th February 2008.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KITALE
Civil Suit 2 of 2008
JOHNAI OKUTOI
PEGGY CHRISTINE OKUTOI ========================PLAINTIFFS/APPLICANTS
V E R S U S
NAJIB JIWA
STANDARD CHARTERED BANK (K) LTD
S. MBUTHIA================================DEFENDANTS/RESPONDENTS
R U L I N G
On 9th January 2008 my learned brother the Hon. Ibrahim J. granted a temporary injunction in favour of the plaintiffs. By that order, the 1st defendant, or his servants or agents were restrained from registering himself as the proprietor of L.R. NO.KITALE MUNICIPALITY/BLOCK 4/462,and from interfering with the plaintiffs’ peaceful possession and use of the said property.
Those orders were to remain in force until 21/1/2008, when the application dated 8/1/2008 was scheduled to be heard inter partes.
Meanwhile, on 17/1/2008, the 1st defendant filed an application under a certificate of urgency. Through that application, (which is dated 17/1/2008) the 1st defendant sought an injunction to restrain the plaintiffs from entering onto the suit property, or from reconstructing it, or from dealing in any way with the said property.
When the 1st defendant’s application first came up in court, it was certified urgent, and the court directed that it be heard inter partes on 21/1/2008.
By that date, I had been notified by the Hon. Chief Justice of the Republic of Kenya, that with effect from 4/2/2008, I would be sitting at the High Court in Kakamega. In the circumstances, both sides to the case before me appreciated that it would not be possible for me to hear and determine the two applications before taking up my new posting. Accordingly, the question that the parties wished me to address is how best to preserve the subject matter of the dispute between them, until such time as my successor would be in a position to hear and determine the two applications.
The plaintiffs asked me to extend the interim injunction which was already in force. Their reason for so saying is that they have always been in occupation of the suit property, notwithstanding the 1st defendant’s contention that he had bought the property at an auction conducted on 12/8/1998.
As far as I can see, the parties are in agreement about the fact that the plaintiffs were carrying on business on the suit property until 17/12/2007, when the premises was gutted down by fire.
The parties also seem to be in agreement that subsequent to the fire, the plaintiffs commenced reconstruction of the buildings.
The 1st defendant wishes to have the plaintiffs stopped from reconstructing the building. That is one of the substantive reliefs sought by the 1st defendant.
Until the two applications are determined by the court, the 1st defendant is ready to keep-off the property. But he asks that the plaintiffs should also keep-off, because any further reconstruction of the buildings would prejudice the 1st defendant. It is his view that should the reconstruction proceed, the same would have to be brought down, in the event that his case were to ultimately succeed.
Meanwhile, he also expressed the view that the ongoing reconstruction was dangerous as the plaintiffs did not first bring down the walls which had been left standing, after the fire. Those walls are alleged to be weak, and thus dangerous.
In this ruling, I do remind myself that neither the plaintiffs’ nor the 1st defendant’s applications have yet been canvassed. Therefore, my only responsibility to give such interim orders as would be in the interests of justice until the Judge who will be presiding over the case is in a position to give further orders. In other words, such orders as I may given at this stage may readily be set aside by my successor.
In the circumstances, I decline to analyze some of the substantive submissions made by the parties, because I hold the considered view that anything which I might say would be premature. But, at the same time, this court cannot just throw up its hands in the air, and leave the parties rudderless.
The plaintiffs appreciate that they could end up losing the case. Yet, they are ready to spend money in reconstructing the building. If they were to spend money on a building that is ultimately brought down, that would be their loss.
And, if the building had to be brought down, the court may well give appropriate orders as to the person who should be responsible for the costs thereof.
Meanwhile, if the plaintiffs do not comply with the requisite bye-laws, as the security or otherwise, I believe that it is they who would be liable.
In the result, the interim orders dated 8/1/2008 are extended until further orders of this court. And the two applications dated 8/1/2008 and 17/1/2008 are listed for hearing inter partes on 18th of February 2008.
Dated, Signed and Delivered at Kitale, this 28th day of January, 2008.
FRED A. OCHIENG
JUDGE