[2012] KEHC 2636 (KLR)
The application for an interlocutory injunction failed on a technical ground. The court found that prayer 3, as framed, was spent and superfluous because it sought to restrain the defendant until the application itself was heard and determined, but the application in question was the very one being ruled upon. The...
Source-derived case information.
- Citation
- [2012] KEHC 2636 (KLR)
- Parties
- Applicant: Phillip Lemetei Ole Sironka; Respondent: Ruga Gituku
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 108 of 2011
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction
- Outcome
- application struck out
- Judges
- GMA Dulu
- Legal Topics
- Interlocutory Injunctions, Land Disputes, Technical Objections, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phillip Lemetei Ole Sironka
Applicant
Ruga Gituku
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from dealing with the suit property pending determination of the application.
- 2 Whether the wording of prayer 3 in the application is sufficient to grant the relief sought.
Ratio Decidendi
The application for an interlocutory injunction failed on a technical ground. The court found that prayer 3, as framed, was spent and superfluous because it sought to restrain the defendant until the application itself was heard and determined, but the application in question was the very one being ruled upon. The court emphasized that it cannot invent or amend prayers for litigants and must rule strictly on the relief sought as presented. Since the prayer was not properly framed to provide an operative order beyond the hearing of the application, the court struck out the application as misconceived.
Court Disposition
application struck out
Orders
- The application dated 14th June 2012 is struck out as misconceived.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMACHAKOS
CIVIL CASE 108 OF 2011
PHILLIP LEMEITEI OLE SIRONKA.....................................................................................PLAINTIFF/APPLICANT
VERSUS
RUGA GITUKU...............................................................................................................DEFENDANT/RESPONDENT
R U L I N G
Before me is an application dated 14th June 2012, filed by the plaintiff, Phillip Lemetei Ole Sironka. The application was brought under Order 40 Rules 1, 2 & 3 of the Civil Procedure (Revised) Rules, and Section 3 and 3A of the Civil Procedure Act (Cap 21).
Learned counsel for the plaintiff, Mr Naikuni, has stated that what the plaintiff is now seeking is prayer 3, which reads:-
3. THAT the Defendant/Respondent by himself, his Agents, servants, personal representatives be restrained from interfering with, entering, alienating, wasting transferring, subdividing and/or dealing in any other transaction thereof with all those parcels of land Reference Kajiado – Kaputiei – North/2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874, 2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883, 2884, 2885, 2886, 2887 and 2888 which is all that parcel of land known as LR No. Kajiado Kaputiei – North 1076 until the application is heard and finally determined by this Honourable Court hereof.
The application is opposed strongly. When learned counsel for the plaintiff, Mr Naikuni, made submissions in court, he clearly stated that the plaintiff’s interest for the moment is the grant of prayer 3.
The application however, will have to fail on a technical point. The proceedings herein were commenced by plaint. Prayer 3 is worded in such a way that once I make this ruling today, it will be superfluous. If this prayer was meant to be operative until another application is heard and determined, that specific application should have been specifically mentioned in that prayer. That was not done. This means that the application referred to in prayer 3 is the application dated 14th June 2012. The court cannot invent a prayer for litigant, and therefore I have to go by the prayer placed before me. The prayer sought has been spent. It is prayer 3.
I consequently find that the application, and specifically prayer 3 of the application dated 14th June 2012, is misconceived, and I strike out the application. Costs in the cause.
Dated and delivered this 10thday of July 2012.
........................................
George Dulu
Judge
In the presence of:
Nyalo – Court clerk
Mr Lampo for Plaintiff/Applicant
N/A for Respondent