[2016] KEHC 1914 (KLR)
The court held that injunctive relief cannot be granted through a miscellaneous application in the absence of a substantive suit such as a plaint or petition. The application was found to be incompetent because there was no pending suit before the court in which interlocutory orders could be issued. The existence of...
Source-derived case information.
- Citation
- [2016] KEHC 1914 (KLR)
- Parties
- Applicant: Karisa Amin Ramadhan; Applicant: Hiedel Marie Gapner; Respondent: Bahati Charo; Respondent: Mwinyi; Respondent: Anderson Jamuhuri Mwinyi; Respondent: Dancan Karisa Mwinyi; Respondent: Shilingi Mwinyi; Respondent: Daniel Kitsao Charo
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 73 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Injunction
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Injunctions, Interlocutory Applications, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karisa Amin Ramadhan
Applicant
Hiedel Marie Gapner
Applicant
Bahati Charo
Respondent
Mwinyi
Respondent
Anderson Jamuhuri Mwinyi
Respondent
Dancan Karisa Mwinyi
Respondent
Shilingi Mwinyi
Respondent
Daniel Kitsao Charo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Injunction
Legal Issues
- 1 Whether an injunction can be granted through a miscellaneous application in the absence of a substantive suit.
- 2 Whether the applicants are entitled to injunctive relief against the respondents for alleged trespass on land parcel Kilifi/Mavueni B/1188.
Ratio Decidendi
The court held that injunctive relief cannot be granted through a miscellaneous application in the absence of a substantive suit such as a plaint or petition. The application was found to be incompetent because there was no pending suit before the court in which interlocutory orders could be issued. The existence of a separate pending suit (ELC No. 211 of 2015) between the parties further rendered the present application procedurally improper. Consequently, the court dismissed the application for being incompetent, reiterating the established legal principle that injunctive orders must be sought within the context of a substantive suit.
Court Disposition
application dismissed with costs
Orders
- The application dated 24th November, 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL MISC APP NO. 73 OF 2015
1. KARISA AMIN RAMADHAN
2. HIEDEL MARIE GAPNER.............................APPLICANT
=VERSUS=
1. BAHATI CHARO
2. MWINYI
3. ANDERSON JAMUHURI MWINYI
4. DANCAN KARISA MWINYI
5. SHILINGI MWINYI
6. DANIEL KITSAO CHARO.......................RESPONDENTS
R U L I N G
1. In his Application dated 24th November, 2015, the Plaintiff is seeking for the following orders:
a. THAT this Honourable court be pleased to issue an injunction order to the Respondents to stop, disturb nor interfere, trespassing the suit of land known as KILIFI/MAVUENI B/1188.
b. THAT, the application be heard inter-parties on such a time this Honouarable Court may direct.
2. The Application is supported by the Affidavit of the Plaintiffs who have deponed that the Respondents have trespassed on the suit land which they own.
3. According to the Plaintiffs, the Defendants are the owners of parcel of land known as Kilifi/Mavueni “B”/203 and should stop interfering with land known as Kilifi/Mavueni B/1188 (the suit property).
4. In response, the Respondents filed Grounds of Opposition in which they averred that the filed Miscellaneous Application and the orders sought are incapable of being granted and that the Applicants remedy is in a pending suit being ELC No. 211 of 2015 filed by the Defendants.
5. The orders that the Plaintiffs are seeking are for injuctive orders. The said orders are by way of a Miscellaneous Application and final in nature.
6. It is trite that an order of injunction can only be granted at an interlocutory stage where there is a pending suit.
7. In the absence of a Plaint or a Petition, and in view of the deposition by the defendants that indeed there is an existing suit between the Plaintiffs and the Defendants, I find and hold that the Miscellaneous Application dated 24th November, 2015 is incompetent.
8. For those reasons, I dismiss the Application dated 24th November, 2015 with costs.
Dated, signed and delivered in Malindi this 14thday of November, 2016.
O. A. Angote
Judge