[2014] KEELC 420 (KLR)
The court held that the defendant's application for a temporary injunction was incompetent because there was no counterclaim or substantive prayer for a permanent injunction in the pleadings. The law requires that interlocutory injunctive relief must be sought in aid of a substantive claim for a permanent...
Source-derived case information.
- Citation
- [2014] KEELC 420 (KLR)
- Parties
- Plaintiff: Mahsen Ahmed Salim; Defendant: Lukas Bruno Mwatsuma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 65 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- SN Mukunya
- Legal Topics
- Interlocutory Injunctions, Specific Performance, Land Sale Agreements, Pleadings Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mahsen Ahmed Salim
Plaintiff
Lukas Bruno Mwatsuma
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether an interlocutory injunction can be granted where there is no prayer for a permanent injunction in the pleadings.
- 2 Whether the defendant's application for a temporary injunction is competent in the absence of a counterclaim.
Ratio Decidendi
The court held that the defendant's application for a temporary injunction was incompetent because there was no counterclaim or substantive prayer for a permanent injunction in the pleadings. The law requires that interlocutory injunctive relief must be sought in aid of a substantive claim for a permanent injunction. Since the defendant had not made such a claim, the application for interlocutory relief could not stand. The court therefore dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The defendant's application for a temporary injunction is dismissed as incompetent.
- Costs awarded to the plaintiff/respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 65 OF 2011
MAHSEN AHMED SALIM ....................................................... PLAINTIFFS
- VERSUS -
LUKAS BRUNO MWATSUMA ......................................... DEFENDANT
RULING
[1] The plaintiff in this case filed his suit on 23rd March, 2011 and prayed for an order of specific performance to compel the defendant to execute the transfer documents in respect of sub plots no. 5,7 and 8 of subdivision number ( original number 46/2/) Section III Mainland North in favour of the plaintiff upon payment of the balance of purchase price as per sale agreement dated 30th April 2009. The defendant filed a reply to the defence on 19th May, 2011 and basically denied the averments of the plaintiff as contained in his plaint. Thereafter by a notice of motion dated 28th November, 2011 the defendant filed his motion claiming that a temporary injunction do issue restraining the plaintiff and or his servants or agents in any other way interfering with the defendants Parcel of land known as CR. 45379 subdivision No. 4138 pending the determination of the suit by the plaintiff.
[2] This application is opposed by the plaintiff /respondent. The basis of the plaintiff/respondent opposition is that the application is misconceived, is an abuse of the court process and does not lie in law for the simple reason that an interlocutory injunction can only issue where there is a permanent injunction sought as the final relief by the applicant.
[3] On perusal of the defence filed herein, it is apparent that there is no counterclaim praying for any injunctive orders against the plaintiff/ respondent. Injunctive relief cannot be granted where there is no relief in the nature of a permanent injunction prayed for. Interlocutory relief cannot be granted in vacuo.This application is dismissed as being incompetent with costs to the respondent.
Dated and delivered in open court at Mombasa this 27th day of March, 2014.
S. MUKUNYA
JUDGE
27. 3.2014
In the presence of:
Mr. Mutubia Advocate for the plaintiff
Mr. Mugalla Advocate for the defendant/applicant
Southern Credit Banking Corp. Ltd -vs- Charles Wachira Ngundo Nrb. HCCC. 170 OF 2000.