[2000] KEHC 123 (KLR)
The court found that the application for injunction was not properly before it because the underlying judicial review application had been withdrawn by consent, and the dispute was solely about the elections of association officials, not about land. There was no pending suit to support the injunction application....
Source-derived case information.
- Citation
- [2000] KEHC 123 (KLR)
- Parties
- Applicant: Kayole Bidii Jua Kali Association; Respondent: Registrar of Societies; Respondent: Six elected officials (unnamed)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1134 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Withdrawal of Application
- Outcome
- Preliminary objection upheld; injunction application struck out with costs; subsequent application withdrawn by consent with no order as to costs.
- Legal Topics
- Preliminary Objection, Injunctions, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kayole Bidii Jua Kali Association
Applicant
Registrar of Societies
Respondent
Six elected officials (unnamed)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Withdrawal of Application
Legal Issues
- 1 Whether the application for injunction restraining sub-division of land is properly before the court in a suit concerning elections of association officials.
- 2 Whether the preliminary objection to the injunction application should be upheld.
- 3 Whether the application dated 17.4.2000 should be withdrawn with or without costs.
Ratio Decidendi
The court found that the application for injunction was not properly before it because the underlying judicial review application had been withdrawn by consent, and the dispute was solely about the elections of association officials, not about land. There was no pending suit to support the injunction application. The preliminary objection was therefore upheld, and the application for injunction was struck out with costs. Subsequently, the application dated 17.4.2000 was withdrawn by consent with no order as to costs, as the consent order it sought to review had been overtaken by events and could not be implemented.
Court Disposition
Preliminary objection upheld; injunction application struck out with costs; subsequent application withdrawn by consent with no order as to costs.
Orders
- The application for injunction dated 10.5.2000 is struck out with costs.
- The application dated 17.4.2000 is withdrawn by consent with no order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC APPL NO. 1134 OF 1999
KAYOLE BIDII JUA KALI ASSOCIATION.............................APPLICANT
VERSUS
THE REGISTRAR OF SOCIETY......................................... RESPONDENT
RULING
This is a preliminary objection to the application for an order of injunction dated 10. 5.2000. The order of injunction is sought to restrain the six respondents from sub-dividing allocating and transferring land reference no. Kayole service scheme A- 1602 It is alleged that the six respondents were unlawfully elected as officials of Kayole Bidii Jua Kali Association and that they are unlwafully sub-dividing the land.
This suit was instituted as a judicial Review application. Notice of motion dated 24. 9.99 asked that the decision of Registrar of societies made on 19. 8.99 to register new officials of the Association be quashed. A consent letter signed by counsel for applicant (Association) and respondent (Registrar of Societies dated 31. 1.2000 was filed in court on 9. 2.2000 asking that application for order of certiorari be marked as settled and that Registrar of societies do care for elections within 30 days. The consent letter was recorded as order of the court on 15. 2.2000.
The six officials who had been elected filed an application dated 17. 4.2000 asking for an order that the consent order entered on 15. 2.2000 be reviewed. That application is fixed for hearing on 23. 5.2000. So it is clear that this suit is about elections and not about land. There is no suit pending. The application for judicial review has been withdrawn though there is a pending application to review the order allowing withdrawal and ordering fresh elections.
I therefore agree with Mr. Nyandieka that the application for injunction to restrain sub-divisions has no foundation. In any case it has been brought in a dispute dealing solely with elections. The applicant should have filed a separate suit.
Consequently I uphold the preliminary objection and with costs and strike out the application for injunction dated 10. 5.2000 with costs.
E. M. Githinji
Judge
22. 5.2000
Mr. Mbogua present
Mr. Nyandieka present
23. 5.2000
Githinji J.
Mr. Nyandieka present
Mr. Kimani & Ngure for 2nd Respondent present -
James Kibe
Mrs Nyiha for Registrar of Societies absent (not served)
Mr. Nyandiek
I apply to withdraw the application dated 17. 4.2000 on the ground that the consent order that we are seeking to review has beenovertaken by events as the 60 days have elapsed and the order cannot be implemented by the registrar. This is subject to there being no order as to costs. If respondents insist on costs then I am ready to prosecute the application.
E.M. Githinji
Judge
Mr. Kimani
Applicant cannot hold this court at ransom. We are entitled to costs. Let them proceed with the application.
E. M. Githinji
Judge
Mr. Nyandieka Then I will proceed with the applicant
Court
Mr. Kimani consults Mr. Ngure and then says: No objection to withdrawal of application with no orders as to costs.
E.M. Githinji
Judge
Order: As prayed by Mr. Nyandieka and by consent application dated 17. 4.2000 is withdrawn with no orders as to costs
E. M. Githinji
Judge
23. 5.2000