[2011] KEHC 1723 (KLR)
The court held that while the plaintiffs were entitled to an interlocutory injunction to preserve the status quo pending the hearing and determination of the suit, it would be improper to grant a mandatory injunction at this stage as it would effectively determine a substantive prayer in the main suit. The court...
Source-derived case information.
- Citation
- [2011] KEHC 1723 (KLR)
- Parties
- Plaintiff: Jonathan Somen; Plaintiff: David Somen; Plaintiff: AccessKenya Group Limited; Defendant: Robert Alai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 171 of 2011
- Procedural Posture
- Civil Suit / Interlocutory Application (ruling on Injunction)
- Outcome
- Application partly allowed; interlocutory injunction granted; mandatory injunction declined; costs to plaintiffs.
- Legal Topics
- Interlocutory Injunctions, Mandatory Injunctions, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Somen
Plaintiff
David Somen
Plaintiff
AccessKenya Group Limited
Plaintiff
Robert Alai
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (ruling on Injunction)
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction pending the hearing and determination of the suit.
- 2 Whether a mandatory injunction requiring retraction of published material can be granted at the interlocutory stage.
Ratio Decidendi
The court held that while the plaintiffs were entitled to an interlocutory injunction to preserve the status quo pending the hearing and determination of the suit, it would be improper to grant a mandatory injunction at this stage as it would effectively determine a substantive prayer in the main suit. The court emphasized that interlocutory applications should not be used to grant final reliefs that are the subject of the main suit, and that the authorities cited by the plaintiffs did not address this specific issue. Accordingly, the court granted the interlocutory injunction but declined to grant the mandatory injunction for retraction.
Court Disposition
Application partly allowed; interlocutory injunction granted; mandatory injunction declined; costs to plaintiffs.
Orders
- Prayer 4 for an interlocutory injunction is granted pending hearing and determination of the suit.
- Prayer 5 for a mandatory injunction is declined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NUMBER 171 OF 2011
JONATHAN SOMEN……………........................…………………….. 1ST PLAINTIFF
DAVID SOMEN…………………………........................…………….. 2ND PLAINTIFF
ACCESSKENYA GROUP LIMITED…………….............................……3RD PLAINTIFF
VERSUS
ROBERT ALAI…………………………………………................................ DEFENDANT
RULING
This is a Notice of Motion dated 11th May 2011 filed on behalf of the plaintiffs. It was brought under section 3A of the Civil Procedure Act (Cap.21 Laws of Kenya), as well as Order 40 Rule 2(1) and Order 51 Rule 1 of the Civil Procedure Rules.
Prayers 1 and 2 and 3 of the application have been spent. Prayer 4 and 5 are the substantive prayers which are alive. Prayer 4 is for an ordinary injunction pending hearing and determination of the case. Prayer 5 is in the form of a request for a mandatory injunction by way of retracting what has been published.
Though this application is unopposed, I will not grant prayers 5. This is because granting the prayer will have the effect of substantively determining prayer (b) in the plaint. A main prayer in the suit cannot be determined at an interlocutory stage. The case authorities cited do not address this issue.
I therefore allow the application and grant prayer 4. I decline to grant prayer 5. Costs of the application are awarded to the plaintiffs.
Dated and delivered at Nairobi this 14th day of July 2011.
………………………………
GEORGE DULU
JUDGE
In the presence of
Ms Gulenywa for Plaintiffs
No appearance for Defendant
C Muendo – court clerk