[2000] KEHC 339 (KLR)
The court held that it cannot grant an injunction restraining parties from entering land they already occupy, as such an order would serve no practical purpose. Furthermore, the application was fatally defective for failing to comply with mandatory procedural requirements under Order L rules 3 and 15(2) of the Civil...
Source-derived case information.
- Citation
- [2000] KEHC 339 (KLR)
- Parties
- Plaintiff: KIHIU MWIRI FARMERS COMPANY LTD; Defendant: SOLOMON KARUGU MUGWERU & 3 OTHERS
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2078 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Interlocutory Injunction Application
- Outcome
- preliminary objection upheld; application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Interlocutory Injunctions, Preliminary Objection, Shareholder Rights, Procedural Defects
- 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
KIHIU MWIRI FARMERS COMPANY LTD
Plaintiff
SOLOMON KARUGU MUGWERU & 3 OTHERS
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Interlocutory Injunction Application
Legal Issues
- 1 Whether an injunction can restrain parties already in occupation of the suit land.
- 2 Whether failure to comply with mandatory procedural requirements renders the application defective.
Ratio Decidendi
The court held that it cannot grant an injunction restraining parties from entering land they already occupy, as such an order would serve no practical purpose. Furthermore, the application was fatally defective for failing to comply with mandatory procedural requirements under Order L rules 3 and 15(2) of the Civil Procedure Rules, which require that grounds of the application be stated and specific wording be included at the foot of the motion. The preliminary objection was therefore upheld and the application dismissed with costs.
Court Disposition
preliminary objection upheld; application dismissed with costs
Orders
- The chamber summons dated 21/10/1999 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.2078 of 1999
KIHIU MWIRI FARMERS COMPANY LTD………………. PLAINTIFFS
VERSUS
SOLOMON KARUGU MUGWERU & 3 OTHERS …...… DEFENDANT
R U L I N G
On 19/10/1999 the applicants filed this suit against the respondents seeking a number of reliefs including a permanent injunction restraining the respondents either by themselves, their agents, and/or servants from entering, the applicants land parcel NO.9214.
On 21/10/1999 the applicant took out a chamber summons under order 39 r r1 and 2 of the Civil Procedure Rules seeking orders to restrain the respondents from entering cultivating cutting trees or on any way interfering with the applicants land NO. LR 9214.
Counsel for the respondents raises a preliminary objection on the grounds that both the applicants and the respondents are currently residing, cultivating and growing crops on the suit land by virtue of being shareholders. Secondly that the application is totally defective and bad in law and does not conform with Order L rr 3 and 15(2) of the Civil Procedure Rules.
If the respondents defence is that they are residing and cultivating the suit land then an order to restrain them from entering would not be appropriate.
The court cannot restrain a party from entering the suit land when he is already there. This would be a futile exercise. On the second issue raised by counsel for the applicant counsel for Applicant concedes that his application did not comply with the provisions of O L R3 and 15(2) of the Civil Procedure Rules. O L r3 provides as follows:-
“Every notice of motion shall state in general terms the grounds of the application - - - -“
And O L R15 (2) provides as follows:- Every motion and summons shall bear at the foot words – “If any party served does not appear at the time and place above-mentioned such order will be made and proceedings taken as the court may think just and expedient.”
These provisions are mandatory and failure to comply with the same makes the application defective.
For the above reasons the preliminary objections is upheld and the application is consequently dismissed with costs.
Dated and delivered at Nairobi this 11th day of March, 2000
J.L.A. OSIEMO
JUDGE