[2008] KEHC 1891 (KLR)
The court found that the application for an injunction was incompetent because the plaintiff was already in possession of the land, having fenced it off and built a shack. Since the alleged trespass had already occurred, a prohibitory injunction could not restrain what had already happened. The proper remedy would...
Source-derived case information.
- Citation
- [2008] KEHC 1891 (KLR)
- Parties
- Plaintiff: Paremeres Ole Koilel; Defendant: Moshorro Group Ranch; Defendant: Ntari Moshorro; Defendant: Salimu Kindi; Defendant: Simon Mututua; Defendant: Kinki Koilel; Defendant: Leshunet Koilel; Defendant: Lemisos Koilel; Defendant: Rupen Koilel; Defendant: Nkoshoo Ngotiek; Defendant: Mpoyo Sunguyiah Stephen; Defendant: Joseph K. Sunguyiah; Defendant: Alfred Ole Loonturot; Defendant: Ene Koilel Kalai Te
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1549 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Injunction
- Outcome
- application for injunction dismissed
- Legal Topics
- Injunctions, Land Ownership Disputes, Trespass, Counter Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paremeres Ole Koilel
Plaintiff
Moshorro Group Ranch
Defendant
Ntari Moshorro
Defendant
Salimu Kindi
Defendant
Simon Mututua
Defendant
Kinki Koilel
Defendant
Leshunet Koilel
Defendant
Lemisos Koilel
Defendant
Rupen Koilel
Defendant
Nkoshoo Ngotiek
Defendant
Mpoyo Sunguyiah Stephen
Defendant
Joseph K. Sunguyiah
Defendant
Alfred Ole Loonturot
Defendant
Ene Koilel Kalai Te
Defendant
Procedural Posture
Civil Case / Ruling on Application for Injunction
Legal Issues
- 1 Whether the application for injunction is competent given the plaintiff is already in possession of the land.
- 2 Whether a mandatory injunction can be granted in the circumstances where the alleged trespass has already occurred.
Ratio Decidendi
The court found that the application for an injunction was incompetent because the plaintiff was already in possession of the land, having fenced it off and built a shack. Since the alleged trespass had already occurred, a prohibitory injunction could not restrain what had already happened. The proper remedy would have been a mandatory injunction or proceeding to trial on the counter-claim for eviction. The court dismissed the application for injunction and directed the parties to set the matter down for trial, noting that the plaintiff had not filed any response and that his advocate had mishandled the case.
Court Disposition
application for injunction dismissed
Orders
- The application for injunction is dismissed as incompetent.
- No costs are awarded to the plaintiff.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1549 of 1998
PAREMERES OLE KOILEL ……………………… PLAINTIFF
VERSUS
1. MOSHORO GROUP RANCH
2. NTARI MOSHORO
3. SALIMU KINDI
4. SIMON MUTUTUA
5. KINKI KOILEL
6. LESHUNET KOILEL
7. LEMISOS KOILEL
8. RUPEN KOILEL
9. NKOSHOO NGOTIEK
10. MPOYO SUNGUYIAH STEPHEN
11. JOSEPH K. SUNGUYIAH
12. ALFRED OLE LOONTUROT
13. ENE KOILEL KALAI TE …………….. DEFENDANTS
RULING
APPLICATION FOR INJUNCTION 6 MAY 2008
I: Background
1. The original suit filed by the original plaintiff, one Parmers Ole Koilel was dismissed for non attendance by the said plaintiff and his advocate to court. It was a suit involving a land buying company whereby it is alleged that the plaintiff had donated portions of his land to a community school. The land buying company allocated it to others.
2. Those allocated the land filed defence in which they denied the allegation and claimed in their counter-claim that the plaintiff was a tress-passer. That he should be evicted from the suit premises.
3. The status of this suit is that the main suit having been dismissed for non-attendance (I believe this is the second time it occurred) the defendants were to pursue their counter-claim. This court rules as such.
4. Instead of setting the case down for hearing of the counter claim the defendant/applicant filed an application for an injunction to restrain the plaintiff from trespassing upon the land.
II: Application 6 May 2008
5. The said application for an injunction really is seeking a mandatory injunction. You cannot restrain what has already occurred. The plaintiff is on the land. He is alleged to have fenced off the land and built a shack. The defendants themselves have counter-claim for trespass and seek his eviction. I would in the circumstances rule that an application for injunction is incompetent. I dismiss the same. As the plaintiff filed no papers I do not award him any costs. His advocate is wanting in handling this case.
6. I direct that parties set down this matter for trial subject to existing applications.
DATED THIS 25TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
O. Agina instructed by Ojwang Agina & Co. Advocates for the plaintiff/applicant – present
J.N. Pareno instructed by J.N. Pareno & Co. Advocates for the defendant/respondent - present