[2007] KEHC 1595 (KLR)
The court found that the aggrieved party, having been the registered owner of the land for nearly a decade, should not have been subjected to an injunction without being heard. Section 80 of the Civil Procedure Act entitles an aggrieved party to seek review of such an order. The court was satisfied that the...
Source-derived case information.
- Citation
- [2007] KEHC 1595 (KLR)
- Parties
- Plaintiff: Samwel Mulati Lukorito; Defendant: Benard Lukorito Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 38 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Review and Lifting of Injunction
- Outcome
- Application allowed; injunction lifted as to parcel NO. BUNGOMA/NAITIRI/625; costs to the aggrieved party.
- Legal Topics
- Injunctions, Review of Orders, Land Ownership, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Mulati Lukorito
Plaintiff
Benard Lukorito Wafula
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review and Lifting of Injunction
Legal Issues
- 1 Whether the aggrieved party was entitled to a review of the injunction order affecting his land without being heard.
- 2 Whether the injunction order should be lifted in respect of parcel NO. BUNGOMA/NAITIRI/625.
Ratio Decidendi
The court found that the aggrieved party, having been the registered owner of the land for nearly a decade, should not have been subjected to an injunction without being heard. Section 80 of the Civil Procedure Act entitles an aggrieved party to seek review of such an order. The court was satisfied that the applicant's quiet possession and use of his land should not be interfered with without due process. Consequently, the earlier injunction order was reviewed to exclude parcel NO. BUNGOMA/NAITIRI/625, and the injunction affecting that parcel was lifted.
Court Disposition
Application allowed; injunction lifted as to parcel NO. BUNGOMA/NAITIRI/625; costs to the aggrieved party.
Orders
- The earlier order granted by the court on 8.3.2006 is reviewed to exclude parcel NO. BUNGOMA/NAITIRI/625.
- The injunction order affecting parcel NO. BUNGOMA/NAITIRI/625 is lifted.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Civil Suit 38 of 2004
SAMWEL MULATI LUKORITO……………..……………….PLAINTIFF
VERSUS
BENARD LUKORITO WAFULA…………………………DEFENDANT
RULING
I had perused this application earlier along with the affidavit and the annexures thereto. I have now heard counsel for the aggrieved party. I note that the aggrieved party has been the registered owner of the plot in question for almost 10 years. He should not have been injuncted from using the said plot unheard. Section 80 of the CPA allows him to come to court for a review if he is aggrieved. Accordingly, I am satisfied after considering the material before me along with counsel’s submission that the aggrieved party’s quiet possession and use of his land should not be interfered with without him being heard.
Accordingly, I find that his application has merit. I allow the same and order that the earlier order granted by the court on 8. 3.2006 be and is hereby reviewed o exclude parcel NO. BUNGOMA/NAITIRI/625 which belongs to the aggrieved party herein.
The injunction order affecting that particular parcel is hereby lifted. Aggrieved party to also get costs of this application.
W. KARANJA
JUDGE
23/3/2007
COURT: Since Mr. Waswa for the Plaintiff was duly served with the application but failed to appear in court today, this order will remain in force until the suit is heard and determined.
This order be served on the plaintiff’s counsel.
W. KARANJA
JUDGE
23/3/2007