[2011] KEHC 1123 (KLR)
The court held that the applicants' application for injunction was incompetent as it sought orders against government officials contrary to Section 16(2) of the Government Proceedings Act. The law prohibits granting injunctions or analogous orders against government officers where such relief could be obtained...
Source-derived case information.
- Citation
- [2011] KEHC 1123 (KLR)
- Parties
- Applicant: Joseph Wahinya Mwaura; Applicant: Lucas Mambo Mwaura; Applicant: John Mburu Mwaura; Applicant: Teresia Wambui Mwaura; Applicant: Lucia Wanjiku Mwaura; Respondent: Njuguna Githuka; Respondent: Francis Ndere Githuka; Respondent: Antony M. Wamburu (Administrator/representative of the estate of Wamburu Githuka (deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 404 of 2010
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondents
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Adverse Possession, Injunctions Against Government, Government Proceedings Act, Land Title 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
Joseph Wahinya Mwaura
Applicant
Lucas Mambo Mwaura
Applicant
John Mburu Mwaura
Applicant
Teresia Wambui Mwaura
Applicant
Lucia Wanjiku Mwaura
Applicant
Njuguna Githuka
Respondent
Francis Ndere Githuka
Respondent
Antony M. Wamburu (Administrator/representative of the estate of Wamburu Githuka (deceased))
Respondent
Procedural Posture
Originating Summons / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an order of injunction restraining the respondents and government officials from dealing with the suit land parcels.
- 2 Whether the applicants can obtain relief by way of injunction against government officers under the Government Proceedings Act.
- 3 Whether the applicants have established a prima facie case for adverse possession.
Ratio Decidendi
The court held that the applicants' application for injunction was incompetent as it sought orders against government officials contrary to Section 16(2) of the Government Proceedings Act. The law prohibits granting injunctions or analogous orders against government officers where such relief could be obtained against the government itself. The court further noted that the proper procedure for challenging actions by government officials is either through judicial review or by suing the Attorney General, not by direct suit against the officials in their official capacity. As such, the application was dismissed with costs to the respondents, and the court declined to consider the merits of...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 31st August, 2010 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 404 OF 2010
JOSEPH WAHINYA MWAURA ………………............................................………1ST APPLICANT
LUCAS MAMBO MWAURA ……………….........................................…………..2ND APPLICANT
JOHN MBURU MWAURA ………………….........................................……………3RD APPLICANT
TERESIA WAMBUI MWAURA …………….........................................……………4TH APPLICANT
LUCIA WANJIKU MWAURA ……………..........................................…………… 5TH APPLICANT
VERSUS
NJUGUNA GITHUKA ……………………….........................................…………1ST RESPONDENT
FRANCIS NDERE GITHUKA …………………..............................................……2ND RESPONDENT
ANTONY M. WAMBURU (Administrator/representative of the estate of WAMBURU GITHUKA (deceased)………3rd RESPONDENT
RULING
The applicants brought this suit by way of Originating Summons following a dispute with the defendants in respect of parcel s of land known as Chania/Makwa/677 and Chania/Makwa/T59. There are several orders sought in the Originating Summons some of which cannot be canvassed by way of Originating Summons but, the bottom line is that the applicants seek an order that they be declared to have become entitled to the two parcels of land by way of adverse possession.
Following the filing of the Originating Summons, an application was filed by way of Chamber Summons for injunction orders to restrain the respondents from dealing with the said parcels of land to the detriments of the applicants. The orders sought by the applicants in the Chamber Summons dated 31st August, 2009 are all directed against the Land Registrar or District Land Surveyor, Thika District. The applicants are represented by an advocate who, with profound respect, should have known that both the Land Registrar and Land Surveyor, Thika District are Government officials and subject to Government Proceedings Act Cap 40 Laws of Kenya. Section 16 (2) reads as follows,
“The court shall not in any Civil Proceedings grant an injunction or make any order against an officer of the government if the effect of granting the injunction or making the order would be to give any relief against the government which could have been obtained in proceedings against the government”.
In the case of Gabriel Mghendi and 2 others versus Registrar of Societies (2006) e KLR the court observed as follows,
“Suits against government official unless they are brought by Judicial Review applications under Order 53 of the Civil Procedure Rules or where the officials are sued in their personal capacities should be brought against the Attorney General. Section 16 of the Government Proceedings Act makes that quiet clear.”
It is also common knowledge that injunctions or orders analogous to injunctions cannot issue against the government or government officers. I have related the above observations to the Originating Summons and orders sought therein and find that, the plaintiffs herein are not likely to succeed in their suit based on the pleadings as drawn. It is not necessary for me to go into the merits of the said summons and therefore dismiss the application dated 31st August, 2010 with costs to the respondents.
Orders Accordingly.
Dated, signed and delivered at Nairobi this 28th day of July, 2011.
A.MBOGHOLI MSAGHA
JUDGE