[2017] KEELC 1454 (KLR)
The court found that the applicant's prayer for restraining the respondent from entering the suit land was inconsistent with the pleadings, which sought eviction. Granting the orders would effectively amount to evicting the respondent before trial, constituting a mandatory injunction. The court held that mandatory...
Source-derived case information.
- Citation
- [2017] KEELC 1454 (KLR)
- Parties
- Applicant: Olympia Ncoga Ncebere; Respondent: Zaverio Mithika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 123 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Adjudication Sections, Eviction Orders, Mandatory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olympia Ncoga Ncebere
Applicant
Zaverio Mithika
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from entering or using the suit land pending determination of the suit.
- 2 Whether the orders sought amount to a mandatory injunction or eviction before trial.
- 3 Whether special circumstances exist to warrant the grant of a mandatory injunction at the interlocutory stage.
Ratio Decidendi
The court found that the applicant's prayer for restraining the respondent from entering the suit land was inconsistent with the pleadings, which sought eviction. Granting the orders would effectively amount to evicting the respondent before trial, constituting a mandatory injunction. The court held that mandatory injunctions at the interlocutory stage are only granted in special and clear circumstances, which were not demonstrated in this case. The court also noted that the matter could not be decided at once without understanding the respondent's rights and interests in the suit land. Consequently, the application was found to be unmerited and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 18th April, 2017 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO 123 OF 2017
OLYPIA NCOGA NCEBERE......................PLAINTIFF/APPLICANT
VERSUS
ZAVERIO MITHIKA............................DEFENDANT/RESPONDENT
R U L I N G
1. The Notice of Motion dated 18th April, 2017 seeks the following orders:-
1) Spent
2) That the Defendant/Respondent hi agents and or persons acting from his authority be and are hereby restrained from entering, making good use or wasting that parcel of land known as Antumburi Adjudication Section, Land P/No. 2122 pending the hearing and determination of this Application.
3) That the Defendant/Respondent his agents and or persons acting from his authority be and are hereby restrained from entering, making good use or wasting that parcel of land known as Antumburi Adjudication Section, Land P/No. 2122 pending the Hearing and determination of the suit.
4) That the Honourable Court be pleased to make such further orders in the interest of justice upon examination.
5) That costs of this application be in the cause.
2. The Application is based on the grounds:-
1) That the Plaintiff/Applicant is the legal owner of parcel of land known as Antumburi Adjudication Section, Land P/NO. 2122 and holds a valid Confirmation of Registration letter issued by the District Land Adjudication & Settlement Officer.
2) That the Defendant /Respondent has invaded and encroached on the Applicant’s parcel of Land, making it impossible for the Plaintiff /Applicant to have quiet possession of her land.
3) That the Defendant /Respondent stands to suffer irreparable loss and damage to her livelihood that she depends on to feed her family if the orders sought herein are not granted.
4) That this Applicant has been brought without unreasonable delay;
5) That in view of the foregoing, it is proper and in the interests of justice that the prayers prayed herein are granted pending the hearing and determination of this Application.
3. Applicant has also filed a Supporting Affidavit where he has reiterated the contents in the grounds set out herein.
4. The application was served but no response was filed.
5. I have perused the application as well as the pleadings. The pleadings clearly indicate that Plaintiff‘s claim against defendant is for an eviction order. It therefore means that defendant is in occupation of the Suitland. The Applicant’s prayer to have defendant restrained from entering the Suitland (in the application) is not in tandem with the pleadings. If the orders sought for are granted, it would amount to the eviction of the defendants before the trial.
6. In essence, the prayer sought herein is for a mandatory injunction. In Kenya breweries Ltd and Another Vs Washington Okeyo (2002) 1 E.A 109, it was held that “there must be special circumstances shown over and above the establishment of a prima facie case for a mandatory injunction to issue, and even then only in clear cases where the Court thinks that the matter ought to be decided at once”.
7. This is not a case that can be decided at once. The Court would be interested in knowing how the defendants came to be in the suit land and what are his rights and interests thereof vis a vis those of the applicant.
All in all, I find that the application is unmerited, the same is hereby dismissed with no orders as to costs.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 11TH DAY OF OCTOBER, 2017 IN THE PRESENCE OF:
CA: Janet
Nyakwana h/b for Kinyua for applicant present.
Hon. L.N. MBUGUA
ELC JUDGE