[2011] KEHC 1642 (KLR)
The court held that a prohibitory injunction is of a preventive nature and serves no useful purpose if the act sought to be restrained has already been completed. In this case, the suit properties (parcels Nos.508 and 512) had already been transferred to third parties and title deeds issued. As such, the injunctive...
Source-derived case information.
- Citation
- [2011] KEHC 1642 (KLR)
- Parties
- Applicant: Peter Kahuthia Mwangi; Respondent: Malewa Ranching Company Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 310 of 1998
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- SP Ouko
- Legal Topics
- Interlocutory Injunctions, Transfer of Land, Fraudulent Transfer, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kahuthia Mwangi
Applicant
Malewa Ranching Company Ltd
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether a prohibitory injunction can issue when the property in dispute has already been transferred to third parties.
- 2 Whether the applicant is entitled to an injunction restraining the respondent from dealing with parcels Nos.508 and 512.
Ratio Decidendi
The court held that a prohibitory injunction is of a preventive nature and serves no useful purpose if the act sought to be restrained has already been completed. In this case, the suit properties (parcels Nos.508 and 512) had already been transferred to third parties and title deeds issued. As such, the injunctive relief sought by the applicant was rendered futile, and the application for an injunction could not be granted. The court emphasized that once the property has been disposed of, no restraining order can reverse the completed act, and the appropriate course for the applicant would be to pursue other remedies against the new parties now joined in the amended plaint.
Court Disposition
application dismissed with costs
Orders
- The application for a prohibitory injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO.310 OF 1998
PETER KAHUTHIA MWANGI………........................................... APPLICANT/PLAINTIFF
AND
MALEWA RANCHING COMPANY LTD....................................RESPONDENT/DEFENDANT
RULING
A temporary prohibitory injunction under order 39 of the revoked Civil Procedure Rules(now reproduced under Order 40 of the 2010 rules) will issue if it is proved to the court, among other things, that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. Such an injunction is of a preventive nature and is of no useful purpose if the act sought to be restrained has already been done.
In this matter, it is the applicant’s case that he purchased two plots (Nos.30 and 332) from the original owners, Isaac Kinyanjui and Maina Kimani, who were shareholders of the respondent, Malewa Ranching Company Limited. That the shares were transferred to the applicant, who embarked on the development of the two plots by constructing a dam, planting trees and other improvements at a cost of Kshs.12m. Without the applicant’s approval, the respondent caused the two parcels in question to be sub-divided into five portions, namely NYANDARUA/KIPIPIRI/LERESHWA BLOCK 1(MALEWA RANCH) 507, 508, 509, 512 and 513; that Nos.507, 509 and 513 were allocated and transferred to the applicant while Nos.508 and 512 have been fraudulently transferred to third parties.
In his chamber summons dated 16th November, 2010, the applicant seeks to restrain the respondent
“…..……from selling, transferring, sub-dividing or in any other way whatsoever from dealing with…..……..”
the two parcels, namely Nos.508 and 512 until the main suit is heard and determined.
In both the replying and what is headed supplementary affidavit, the respondent has deposed that the two parcels have indeed been transferred and one registered in the names of Elizabeth Wambui Mwangi and Joseph Kamau Kimani, respectively, to whom title deeds have been issued. With that revelation, the applicant’s counsel instead of seeing the obvious futility in pursuing the present application and seeing the sense of withdrawing it has filed an amended plaint bringing on board the two purchasers.
I started by stating that a prohibitory injunction is not efficacious where the act sought to be stopped has already been committed. The suit properties having been disposed of an injunction is of no use. The horse has bolted and no amount of restraining order can stop it.
The application fails and is dismissed with costs.
Dated, Delivered and Signed at Nakuru this 3rd day of June, 2011.
W. OUKO
JUDGE