[2018] KEELC 287 (KLR)
The court declined to grant a temporary injunction because there is a previously instituted suit in the Chief Magistrate’s Court, Nakuru, involving the same parties and subject matter, where similar injunctive relief has already been granted. Issuing another order would be contrary to public policy and Section 6 of...
Source-derived case information.
- Citation
- [2018] KEELC 287 (KLR)
- Parties
- Plaintiff: Lumbei Company Limited; Defendant: Kiprotich Keitany; Defendant: Musa K. Maiyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 70 of 2018
- Procedural Posture
- Land and Environment Case / Ruling on Interlocutory Application for Injunction and Transfer of Suit
- Outcome
- Application for temporary injunction declined; matter transferred to Chief Magistrate’s Court, Nakuru; status quo to be maintained.
- Judges
- A Ombwayo
- Legal Topics
- Injunctions, Eviction, Lis Pendens, Transfer of Suit, Status Quo Orders
- 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
Lumbei Company Limited
Plaintiff
Kiprotich Keitany
Defendant
Musa K. Maiyo
Defendant
Procedural Posture
Land and Environment Case / Ruling on Interlocutory Application for Injunction and Transfer of Suit
Legal Issues
- 1 Whether the court should grant a temporary injunction restraining the defendants from interfering with the suit property pending determination of the suit.
- 2 Whether the matter should be stayed or transferred in light of a previously instituted suit involving the same subject matter and parties.
- 3 Whether issuing an injunction would amount to granting final relief at the interlocutory stage.
Ratio Decidendi
The court declined to grant a temporary injunction because there is a previously instituted suit in the Chief Magistrate’s Court, Nakuru, involving the same parties and subject matter, where similar injunctive relief has already been granted. Issuing another order would be contrary to public policy and Section 6 of the Civil Procedure Act, which prohibits parallel proceedings on the same issues. Furthermore, granting the injunction sought would effectively amount to evicting the defendants at an interlocutory stage, thereby determining the main issue before full hearing. The court therefore ordered the transfer of the matter to the Chief Magistrate’s Court, Nakuru, for consolidation and...
Court Disposition
Application for temporary injunction declined; matter transferred to Chief Magistrate’s Court, Nakuru; status quo to be maintained.
Orders
- Application for temporary injunction is declined.
- Matter is transferred to the Chief Magistrate’s Court, Nakuru, to be considered with Nakuru CMCC No. 1174 of 2015.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 70 OF 2018
LUMBEI COMPANY LIMITED...........................PLAINTIFF
VERSUS
KIPROTICH KEITANY...............................1ST DEFENDANT
MUSA K. MAIYO........................................2ND DEFENDANT
RULING
The plaintiff, Lumbei Company Limited has come to court against Kiprotich Keitany and Musa K. Maiyo for a declaration that the plaintiff is the registered owner and proprietor of the parcel land known as L. R. 498/376, Eldama Ravine.
The plaintiff seeks orders that the defendants are trespassers and that the defendants be evicted from the parcel of land. Moreover, that the court does issue a permanent injunction against the defendants herein either by themselves, their agents, employees and/or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, erecting structures or dealing in any way in plaintiff’s piece of land.
The verifying affidavit is sworn by Gideon Toroitich, a director of the company. The plaintiff prays for temporary orders of injunction pending the hearing and determination of the suit.
The same plaintiff, Lumbei Company went to the Chief Magistrate’s Court at Nakuru against Gideon K. Toroitich in Civil Cause No. 1174 of 2015 praying for a permanent injunction restraining the defendant, his agent and/or servants, employees and any other persons claiming through him from entering, interfering with the running of affairs of the plaintiff and from interfering with the suit land in any manner whatsoever.
The plaintiff filed an application for temporary orders, which application was placed before Hon. J. M. Omido in the presence of counsel for the plaintiff and in absence of counsel for the defendant, though served and the honourable court granted the plaintiff a temporary injunction restraining the defendant that is Gideon K. Torotich by himself, his workers, employees, servants, agents and or those claiming under him from interfering in any manner whatsoever and or evicting the plaintiff from the parcel of land known as L. R. 498/376 Block 1/496, Eldama Ravine Township until the hearing and determination of the suit. The suit has not been determined.
This court finds that it will be against public policy to issue an order where there exists another order in the Lower Court.
Section 6 of the civil procedure act provides for stay of suit in such circumstances thus:-
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
The plaintiff is seeking eviction orders in the main suit which means the defendants are in occupation of the suit property and therefore, issuing an order of injunction will be tantamount to evicting the defendants. The court declines to grant any temporary order. The matter is transferred to the Chief Magistrate’s Court, Nakuru to be considered with Nakuru CMCC No. 1174 of 2015. Costs of the application in the cause. Orders accordingly.
In the interest of justice, the court issues an order that status quo be maintained and that the County Land Registrar, Baringo is restrained from entering any transaction in the registration of the property until the case is heard and determined. The matter is transferred in Chief Magistrate’s Court, Nakuru CMCC No. 1774 of 2015.
Dated and delivered at Eldoret this 29th day of November, 2018.
A. OMBWAYO
JUDGE