[2007] KEHC 269 (KLR)
The court found that the applicant, having been the registered owner of the parcel in question for nearly a decade, should not have been injuncted from using his land without being afforded an opportunity to be heard. The court held that Section 80 of the Civil Procedure Act entitles an aggrieved party to seek...
Source-derived case information.
- Citation
- [2007] KEHC 269 (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 138 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Review and Lifting of Injunction
- Outcome
- Application allowed. Earlier injunction order reviewed and lifted as regards parcel BUNGOMA/NAITIRI/625. Costs awarded to the applicant.
- Judges
- J Karanja
- Legal Topics
- Injunctions, Review of Court Orders, Land Ownership Disputes
- 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 properly injuncted from using his land without being heard.
- 2 Whether the court should review its earlier order to exclude the aggrieved party's parcel from the injunction.
Ratio Decidendi
The court found that the applicant, having been the registered owner of the parcel in question for nearly a decade, should not have been injuncted from using his land without being afforded an opportunity to be heard. The court held that Section 80 of the Civil Procedure Act entitles an aggrieved party to seek review of an order. Upon considering the material before it and the submissions of counsel, the court determined that the applicant's quiet possession and use of his land should not be interfered with without due process. Consequently, the court reviewed its earlier order to exclude the applicant's parcel from the injunction and lifted the injunction affecting that parcel.
Court Disposition
Application allowed. Earlier injunction order reviewed and lifted as regards parcel BUNGOMA/NAITIRI/625. Costs awarded to the applicant.
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 138 of 2004
SAMWEL MULATI LUKORITO :::::::::::::::::::::::: PLAINTIFF
VS
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