[2013] KEHC 2284 (KLR)
The court found that the present application was essentially a reiteration of the previously dismissed application for interlocutory injunction. The facts and legal principles applicable had not changed since the earlier ruling. The court held that the plaintiff failed to meet the established principles for the...
Source-derived case information.
- Citation
- [2013] KEHC 2284 (KLR)
- Parties
- Plaintiff: Naftali Ruthi Kinyua; Defendant: Patrick Thuita Gachure; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 462 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Application for Temporary Injunction Pending Appeal
- Outcome
- application dismissed with costs to the defendants
- Judges
- MM Gitumbi
- Legal Topics
- Interlocutory Injunctions, Appeal Procedure, Land Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naftali Ruthi Kinyua
Plaintiff
Patrick Thuita Gachure
Defendant
City Council of Nairobi
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Temporary Injunction Pending Appeal
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the 1st defendant from trespassing on the suit property pending appeal.
- 2 Whether the application amounts to an abuse of court process by seeking to re-litigate issues already determined.
Ratio Decidendi
The court found that the present application was essentially a reiteration of the previously dismissed application for interlocutory injunction. The facts and legal principles applicable had not changed since the earlier ruling. The court held that the plaintiff failed to meet the established principles for the grant of an interlocutory injunction as set out in Giella vs. Cassman Brown (1973) EA 358. Further, the court noted that entertaining the application would amount to allowing an appeal through the back door and would be an abuse of the court process. Consequently, the application was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The plaintiff's application for temporary injunction is dismissed.
- The plaintiff shall pay the costs of this application to the defendants.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
E. L.C. CASE NO. 462 OF 2011
NAFTALI RUTHI KINYUA……………..……....…………….…..PLAINTIFF
VERSUS
PATRICK THUITA GACHURE…………………..……….. 1ST DEFENDANT
CITY COUNCIL OF NAIROBI.…………………………….2ND DEFENDANT
RULING
Before me is the Plaintiff’s Notice of Motion dated 21st May 2013 which seeks orders of temporary injunction restraining the 1st Defendant from trespassing on Land Reference Number 8285/1522 or Plot Number 133 Kariobangi Light Industries (the “Suit Property) pending the inter-partes hearing of this application and pending appeal.
It is based on the grounds that this court delivered a ruling on 17th May 2013 dismissing the Plaintiff’s application dated 6th September 2011 and that being dissatisfied with that ruling, the Plaintiff has preferred an appeal and seeks the Suit Property preserved as the appeal is being heard and determined.
The application is also supported by the Supporting Affidavit of Naftali Ruthi Kinyua sworn on 21st May 2013.
The application is opposed through the Replying Affidavit of Patrick Thuita Gachure sworn on 5th June 2013 in which he stated that the application is disguised as an application for injunction pending appeal while in the real sense it amounts to an appeal through the back door which is an abuse of the process.
Indeed, this court did have an opportunity to consider whether or not to grant an interlocutory injunction in this case as sought by the Plaintiff in his Notice of Motion dated 5th September 2011. The court went to great length to explain the reasons why it declined to grant the interlocutory injunction. The present application is in many ways a reiteration of the dismissed application. The same principles set out in the said ruling are applicable in this suit. The facts being the same, this court finds that the application fails to meet the principles for the grant of an interlocutory injunction set out in the case Giella vs. Cassman Brown (1973) EA 358.
Accordingly, this application is hereby dismissed with costs to the Defendants.
SIGNED AND DELIVERED AT NAIROBI
ON THE 20TH DAY OF SEPTEMBER 2013.
MARY M. GITUMBI
JUDGE