[2013] KEHC 343 (KLR)

[2013] KEHC 343 (KLR)

The court found that the exparte restraining order issued on 13/8/2013 had lapsed by operation of law before the defendants/applicants filed their application, as it was not extended and was not shown to have been served within the statutory period. Consequently, there was no subsisting order to set aside, vary, or...

Source-derived case information.

Citation
[2013] KEHC 343 (KLR)
Parties
Plaintiff: Juliana Achieng Owino; Defendant: Rose Obama; Defendant: Gordon Obama
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
10 December 2013
Case Number
Environment & Land Case 208 of 2013
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Outcome
application dismissed with costs
Legal Topics
Interlocutory Injunctions, Exparte Orders, Service of Process, Land Ownership Disputes
Source Language
english
Civil Procedure Land and Property Interlocutory Injunctions Exparte Orders Service of Process Land Ownership Disputes

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Summary, issues, holding and outcome

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Parties

Juliana Achieng Owino

Plaintiff

Rose Obama

Defendant

Gordon Obama

Defendant

Procedural Posture

Notice of Motion / Ruling on Interlocutory Application

Legal Issues

  1. 1 Whether the exparte restraining order issued on 13/8/2013 was still valid and capable of being set aside or varied at the time of the defendant's application.
  2. 2 Whether the defendants/applicants met the legal threshold for grant of an interim injunction restraining the plaintiff from interfering with their occupation of the disputed land.
  3. 3 Whether the application by the defendants/applicants was procedurally proper given the existence of a similar application by the plaintiff.

Ratio Decidendi

The court found that the exparte restraining order issued on 13/8/2013 had lapsed by operation of law before the defendants/applicants filed their application, as it was not extended and was not shown to have been served within the statutory period. Consequently, there was no subsisting order to set aside, vary, or discharge. The court further held that the defendants/applicants had not filed a defence or counterclaim, nor had they enjoined the alleged seller of the land, rendering their application procedurally defective. The court also noted that the land described by the defendants differed from that of the plaintiff and may not exist in law, raising doubts about the appropriateness of...

Court Disposition

application dismissed with costs

Orders

  • The defendants/applicants' application dated 2/9/2013 is dismissed with costs to the plaintiff/respondent.
  • Right of appeal within 30 days.