[2011] KEHC 1177 (KLR)
The court found that Order 39 of the Civil Procedure Rules does indeed provide for both prohibitive and mandatory injunctions, contrary to the appellants' argument. The court further held that the circumstances of the case, where the respondent's stall was closed by the appellants without reasonable cause, justified...
Source-derived case information.
- Citation
- [2011] KEHC 1177 (KLR)
- Parties
- Appellant: Municipal Council of Thika; Appellant: Town Clerk Municipal Council of Thika; Respondent: Peter Kapanga Werunga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 539 ‘A’ of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DK Maraga
- Legal Topics
- Mandatory Injunctions, Interlocutory Orders, Stall Leases, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Thika
Appellant
Town Clerk Municipal Council of Thika
Appellant
Peter Kapanga Werunga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether Order 39 of the Civil Procedure Rules allows for the grant of mandatory injunctions.
- 2 Whether the circumstances justified the grant of a mandatory injunction in favour of the respondent.
Ratio Decidendi
The court found that Order 39 of the Civil Procedure Rules does indeed provide for both prohibitive and mandatory injunctions, contrary to the appellants' argument. The court further held that the circumstances of the case, where the respondent's stall was closed by the appellants without reasonable cause, justified the grant of a mandatory injunction to restore the respondent to possession. The trial court was therefore correct in granting the mandatory injunction, and the appeal lacked merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAROBI
CIVIL APPEAL NO. 539 ‘A’ OF 2006
MUNICIPAL COUNCIL OF THIKA..............................................................................1ST APPELLANT
TOWN CLEARK MUNICIPALCOUNCIL OF THIKA.............................................2ND APPEALLANT
Versus
PETER KAPANGA WERUNGA.......................................................................................RESPONDENT
JUDGMENT
This is an appeal against the ruling of the Senior Principal Magistrate delivered on 18th July 2006 in Thika CMCC No. 301 of 2006 granting the Respondents a mandatory injunction.
The claim in that case is that on or about 7th March 2006 the Respondents leased Stall No. 004 within Stadium Area Thika to the Respondent Kshs.3,000/=. On 10th April 2006 the Respondent’s askaris closed the stall without any or any reasonable cause. On 13th April 2006 the Respondent filed the said suit and sought a permanent injunction from evicting the Appellant or interfering with his quiet occupation of the stall. Contemporaneous with the filing of the suit the Respondent also applied for a mandatory injunction. As I have said the trial court
Allowed that application and directed the Appellant to reopen the stall thus provoking this appeal.
Counsel for the Appellant first challenged the competence of that application arguing that Order 39of the Civil Procedure Rulesdoes not provide for mandatory injunctions. On the merits of the appeal counsel submitted that mandatory injunctions are granted on matters of life and death. The respondent’s case is not such a case and did not therefore merit the grant of mandatory injunction. No submissions wee filed on behalf of the Respondent.
The contention for the Appellant that Order 39 does not provide for mandatory injunction has no legal basis. That Order provides for injunctions, both prohibitive and mandatory – Kamau Muchunu Vs Ripples Ltd., CA No. NAI 186 of 1992.
The contention that the Respondent’s did not merit a mandatory injunction is also misplaced. Mandatory interlocutory injunctions are granted where the defendant attempts to steal a match – Kenya Breweries Lt. Vs Okeyo [2002] 1 EA 109. This is such a case and the trial court was perfectly entitled to grant mandatory injunction.
In the circumstances this appeal has no merit and I accordingly dismiss it with costs.
DATED and delivered this 19th day of July 2011.
D.K. MARAGA
JUDGE