[2017] KEELC 1423 (KLR)
The court found that the reliefs sought in the interlocutory application were identical to those sought in the main suit. Granting the orders at this stage would effectively determine the entire suit without a full hearing on the merits, which would be contrary to the interests of justice. The court emphasized the...
Source-derived case information.
- Citation
- [2017] KEELC 1423 (KLR)
- Parties
- Plaintiff: Mary Wekesa Walumoli alias Mary N. Wanyonyi; Defendant: The Chief Officer Lands; Defendant: The Sub County Administrator; Defendant: The County Government of Bungoma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2017
- Procedural Posture
- Environment and Land Case / Interlocutory Application Ruling
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wekesa Walumoli alias Mary N. Wanyonyi
Plaintiff
The Chief Officer Lands
Defendant
The Sub County Administrator
Defendant
The County Government of Bungoma
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of an interlocutory injunction restraining the defendants from further construction on Plot No. 4 Tongaren Market pending hearing and determination of the suit.
- 2 Whether granting the orders sought at this stage would amount to determining the main suit without a full hearing.
Ratio Decidendi
The court found that the reliefs sought in the interlocutory application were identical to those sought in the main suit. Granting the orders at this stage would effectively determine the entire suit without a full hearing on the merits, which would be contrary to the interests of justice. The court emphasized the need for the parties to fully canvass the issues at trial and declined to grant the interlocutory injunction, dismissing the application without costs.
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
- The suit to be fixed for hearing on merits.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ENVIRONMENT & LAND CASE NO. 44 OF 2017.
MARY WEKESA WALUMOLI
alias MARY N. WANYONYI…………………….....…………PLAINTIFF
VERSUS.
THE CHIEF OFFICER LANDS……………………………1ST DEFENDANT
THE SUB COUNTY ADMINISTRATOR………………..2ND DEFENDANT
THE COUNTY GOVERNMENT OF BUNGOMA……….3RD DEFENDANT
RULING.
[1]. The applicant filed this Notice of Motion on 15/3/2017. No rules of procedure were quoted in that application. The applicant prays that the Chief Officer Lands, the Sub County Administrator and the County Government of Bungoma be restrained from further construction, working, building, digging and erecting structures on Plot No. 4 Tongaren Market pending the hearing and determination of this application and the suit.
[2]. The application is opposed by the defendants who have filed grounds of opposition on 24/4/2017 and stated that the applicant has not proved any proprietary or equitable right on the suit property to warrant the orders sought, further that the applicant has not furnished the court with the allotment Letter, lease and/or certificate to prove ownership. It is also argued that the minutes attached by the applicant are not certified and that there are no photographs and/or report to show how the respondents have encroached the parcel complained about.
[3]. I have perused the application and the annextures. I have equally perused the plaint filed herein by the applicant dated 15/3/2017. The plaint claims in paragraph 10
“The plaintiff claims against the defendant is for a permanent injunction and any structure erected by the defendant herein be demolished”
It is therefore plain that the application herein and the suit claim for exactly the same thing. Determining this application will mean determining the suit at a preliminary stage without hearing the parties. This will not be in the interests of justice.
I order that this suit be fixed for hearing on merits to enable the parties to fully canvass the issues raised herein. The end result is that the application is dismissed with no order as to costs.
Ruling read in Open Court.
Dated atBungoma this 4th day of October, 2017.
S. MUKUNYA
JUDGE.
In the presence of:
Court Assistants: Chemutai/Joy
1st Plaintiff - Present
No appearance for the respondents