[2017] KEELC 1491 (KLR)
The court found that the applicant failed to demonstrate any error apparent on the face of the record or the existence of new material facts that would justify a review of the injunctive orders issued on 6th April, 2017. The applicant's shifting positions regarding her relationship to the respondent and the basis of...
Source-derived case information.
- Citation
- [2017] KEELC 1491 (KLR)
- Parties
- Plaintiff: Joshua Saruni Ole Shonko; Defendant: Teresia Wanjiku Njuguna; Defendant: Mary Salenoi Shonko; Defendant: Peris Nyathango Shonko; Defendant: District Land Registrar-Narok
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2017
- Procedural Posture
- Review Application / Ruling on Application for Review of Injunctive Orders
- Outcome
- application dismissed with costs to the respondent
- Judges
- MN Kullow
- Legal Topics
- Review of Court Orders, Injunctive Relief, Ownership of Land, Matrimonial Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Saruni Ole Shonko
Plaintiff
Teresia Wanjiku Njuguna
Defendant
Mary Salenoi Shonko
Defendant
Peris Nyathango Shonko
Defendant
District Land Registrar-Narok
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Injunctive Orders
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for review of the injunctive orders issued on 6th April, 2017.
- 2 Whether there is an error apparent on the face of the record or new material facts to warrant review.
Ratio Decidendi
The court found that the applicant failed to demonstrate any error apparent on the face of the record or the existence of new material facts that would justify a review of the injunctive orders issued on 6th April, 2017. The applicant's shifting positions regarding her relationship to the respondent and the basis of her claim (as purchaser or spouse) undermined the credibility of her application. The court reaffirmed that the grounds for review are strictly limited and must be clearly established. Since the applicant did not meet these requirements, the application for review was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 23rd May, 2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 152 OF 2017
JOSHUA SARUNI OLE SHONKO.........................PLAINTIFF/APPLICANT
-VERSUS-
TERESIA WANJIKU NJUGUNA........................................1ST DEFENDANT
MARY SALENOI SHONKO..............................................2ND DEFENDANT
PERIS NYATHANGO SHONKO.......................................3RD DEFENDANT
DISTRICT LAND REGISTRAR-NAROK..........................4TH DEFENDANT
RULING
The Application before me has been brought under order 45 of the Civil Procedure. The Applicant seeks a review of the orders made by the court on 6th April, 2017 and thus allows the Defendant entry and access to the parcel of land known as CIS MARA NAIRAGIE-ENKARE/1021 AND 601 pending the hearing of the suit.
The Application was based on the grounds that the Applicant is the registered owner of the subject land as bonafide purchaser and that the Respondent has left the matrimonial home without provision for the applicant and her children and further that they will not interfere with the suit land and the Respondent had accepted purchase funds from the Applicant.
The Application was further supported by the Affidavit of Teresia Wanjiku Njuguna. In the Affidavit she basically says she wants a review of the injunctive orders issued against her by this court on 6th April, 2017.
The Respondent has opposed the Application stating that there is no error apparent on the record and now new facts have emerged to warrant the review that the Applicant is best suited to file an appeal and a review.
I have considered the Application before me together with grounds upon which it is based and the supporting affidavit thereof together with the replying affidavit in opposition to the application.
This court had on 6th April, 2017 issued injunctive orders against the applicant in that application the applicant had in her replying affidavit denied that she was married to the respondent herein as deponed in paragraph 5 of the Replying affidavit and her major ground in opposing the injunction application was that she was a purchaser of the suit and I find it rather puzzling in this application she is the wife of the Respondent and had sired children with him and he abandoned them.
Regardless of the above the grounds for review of orders as contained in the civil procedure are well settled. The Applicant has not demonstrated any error on the face of the record or whether new material facts has arisen.
In view of the foregoing I will dismiss the Application dated 23rd May, 2017 with costs to the Respondent.
It is so ordered.
Dated, SignedandDeliveredin open court atNAROKon this 6thday ofOCTOBER, 2017
Mohammed Noor Kullow
Judge
In the presence of:
Mr Kilele holding brief for Karanja Mbugua for the plaintiff
N/A for the Defendant
CA:Chuma