[2014] KEHC 4788 (KLR)
The court found that the applicant failed to meet the legal threshold for the grant of injunctive orders as set out in Giella v Cassman Brown & Co. Ltd. & Another. The applicant did not demonstrate a prima facie case with a probability of success, nor did he show that he would suffer irreparable harm that could not...
Source-derived case information.
- Citation
- [2014] KEHC 4788 (KLR)
- Parties
- Applicant: Martin Matee Musomba; Respondent: Yulu Musomba; Respondent: Anne Ndunge David; Respondent: Masila Wambua; Respondent: Mailu Musau Nzivo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 141 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Land Adjudication, Injunctive Relief, Judicial Review, Ministerial Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Matee Musomba
Applicant
Yulu Musomba
Respondent
Anne Ndunge David
Respondent
Masila Wambua
Respondent
Mailu Musau Nzivo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from interfering with parcels of land Nos. 2069 and 1474 pending determination of the substantive application.
- 2 Whether the applicant has met the threshold for grant of injunctive orders under the law.
- 3 Whether the delay in prosecuting the substantive judicial review motion affects the applicant's entitlement to interim relief.
Ratio Decidendi
The court found that the applicant failed to meet the legal threshold for the grant of injunctive orders as set out in Giella v Cassman Brown & Co. Ltd. & Another. The applicant did not demonstrate a prima facie case with a probability of success, nor did he show that he would suffer irreparable harm that could not be compensated by damages. Furthermore, the court noted the inordinate delay of approximately 13 years in prosecuting the substantive judicial review motion, which undermined the applicant's entitlement to interim relief. The finality of the Minister's decision under section 29(1) of the Land Adjudication Act further limited the court's ability to intervene at this...
Court Disposition
application dismissed with costs
Orders
- The application dated 22/11/2011 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO 141 OF 1998
IN THE MATTER OF THE APPLICATION BY MARTIN MATEE MUSOMBA
MARTIN MATEE MUSOMBA ……….….…… PLAINTIFF/APPLICANT
VERSUS
YULU MUSOMBA
ANNE NDUNGE DAVID
MASILA WAMBUA
MAILU MUSAU NZIVO ……… DEFENDANTS/RESPONDENTS
R U L I N G
The Application dated 22/11/2011 seeks orders that a temporary order do issue restraining the Defendants/Respondents from entering, dealing, trespassing, alienating and/or otherwise whatsoever interfering with parcels of land nos. 2069 and 1474 situated in Makueni Districtuntil the application herein dated 20/12/2000 is heard and finally determined.
The application is supported by the affidavit of the Applicant Martin Matee Musomba. It is deposed that the Applicant is the absolute proprietor of plots known as Nos 2069 and 1474situated at Uvete Adjudication Section, Kilungu Division in Makueni. The Applicant’s complaint is that when Uvete area was declared a Land Adjudication Section, an objection was lodged and the Land Adjudication Committee which excised the plots No. 2069 and 1474 from plot No. 695 and plot No. 672 respectively and given to the 1st Respondent, Yulu Musomba and the 2nd Respondent, Anne Ndunge David. That the Applicant protested to the Machakos District Lands Adjudication Committee and subsequently lodged an appeal with the Minister but the appeal was dismissed. The Applicant then proceeded to file the Judicial Review proceedings herein then subsequently filed the instant application.
It is further averred by the Applicant that the 1st and 2nd Respondents have sold the aforestated respective parcels of land to the 3rd and 4th Respondents who have trespassed into the Plaintiff’s aforestated plot No. 2069 and 1474 and purported to take physical possession of the same and are uprooting trees, cutting down trees and burning charcoal while issuing threats to the Applicant.
The Respondents did not file any affidavit in reply or grounds of opposition but their counsel, Mr Kisongoa submitted on questions of law.
I have perused the record and considered the submissions by the counsels for the respective parties.
It is apparent that the application dated 3/10/98 seeking leave to institute the Judicial Review proceedings was filed on 5/10/98. The leave was granted on 16/4/99. It is noted from the application seeking leave that there was no prayer for the leave sought to apply as a stay of the Minister’s determination made on 22/7/98. The substantive (amended) Notice of Motion dated 20/12/2000 was filed on 2/1/2001 and the same is still pending.
On 24/11/2011, the instant Chamber Summons application dated 22/11/2011 was filed. This was about 13 years from the date the Applicant instituted the Judicial Review proceedings herein. The question left begging for answers is why there has been inordinate delay in prosecuting the substantive motion for Judicial Review. Instead the Applicant filed the application at hand seeking restraining orders against the Respondents.
I have considered the provisions of section 29 (1) of the Land Adjudication Act Cap 284 Laws of Kenya which make the determination of appeals by the Minister final. I also bear in mind the scope of Judicial Review proceedings. The conclusion I have reached is that the Applicant’s case fails to meet the threshold for the grant of injunctive orders (seeGiella –vs- Cassman Brown & Co. Ltd. & Another [1973] EA 358).
Consequently, the application is dismissed with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 15thday of May 2014.
………………………………………
B. THURANIRA JADEN
JUDGE