[2020] KEELC 43 (KLR)
The court held that it is functus officio after delivering judgment and cannot grant an injunction in the absence of a pending suit. The application for an injunction was therefore misconceived, as the appropriate remedy for the applicant, if aggrieved by the respondents' conduct, would be to file an application for...
Source-derived case information.
- Citation
- [2020] KEELC 43 (KLR)
- Parties
- Plaintiff: Shajanand Holdings Ltd; Defendant: Michael Kiptorus; Defendant: County Government of Kisumu; District Land Registrar, Kisumu; National Land Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 240 of 2015
- Procedural Posture
- Injunction Application / Ruling on Post Judgment Injunction Application
- Outcome
- application dismissed with costs
- Judges
- TM Olando
- Legal Topics
- Injunctions, Contempt of Court, Execution of Judgments, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shajanand Holdings Ltd
Plaintiff
Michael Kiptorus
Defendant
County Government of Kisumu
Defendant
District Land Registrar, Kisumu
National Land Commission
Procedural Posture
Injunction Application / Ruling on Post Judgment Injunction Application
Legal Issues
- 1 Whether the court can grant an injunction after judgment has been delivered and the suit is concluded.
- 2 Whether the conduct of the respondents amounts to contempt of court orders.
- 3 Whether the applicant is entitled to the orders sought in the absence of a pending suit.
Ratio Decidendi
The court held that it is functus officio after delivering judgment and cannot grant an injunction in the absence of a pending suit. The application for an injunction was therefore misconceived, as the appropriate remedy for the applicant, if aggrieved by the respondents' conduct, would be to file an application for contempt of court. The court found that the respondents' actions may border on contempt but declined to grant the injunction sought, dismissing the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 240 OF 2015
SHAJANAND HOLDINGS LTD....................................................................PLAINTIFF
VERSUS
MICHAEL KIPTORUS.......................................................................1ST DEFENDANT
COUNTY GOVERNMENT OF KISUMU.........................................2ND DEFENDANT
DISTRICT LAND REGISTRAR, KISUMU.......................1ST INTERESTED PARTY
NATIONAL LAND COMMISSION...................................2ND INTERESTED PARTY
RULING
The Application before me is dated 3rd December, 2019. The applicant, Shajanand Holdings Limited seeks orders that an injunction do issue directed at the 1st and 2nd respondents their agents, employees, workers, agents and/or whomsoever jointly and severally restrained them from taking possession, blocking the applicant and/or in any way interfering with the plaintiff/applicant’s quite possession of the suit property Kisumu/Municipality/Block 4/154. The costs of this application be provided for.
The application is based on grounds that the court in its judgement of 15th November, 2019 issued an order for the eviction the 1st Respondent from the Plaintiff/Applicant’s suit property Kisumu/Municipality/Block 4/154.
The Applicant has since evicted the 1st respondent from the suit property in line with the judgement of the court. The 1st respondent and employees of the 2nd Respondent have now embarked on harassing the plaintiff/applicant who is now in possession of the suit property.
The 1st respondent and employees of the 2nd Respondent have constantly been locking the Applicant’s gate to the suit property with padlocks to frustrate the plaintiff/applicant from freely moving about its property.
The 1st respondent and 2nd respondent are denying the applicant access and economic use of the suit property despite the applicant having evicted the 1st respondent.
The applicant stands to suffer irreparable injury in the event the injunction is not granted. The supporting affidavit of Chandrakant Chhabhadia reiterates the grounds. The respondent has responded vide the replying affidavit of Arnord Omondi Guya, an employee of the 2nd defendant. He dwells on the fact that the decree of the court was improperly executed. He also appears to complain on the consequences of the judgement.
I have considered the application, the replying affidavit and rival submissions and do find that the 1st and 2nd respondent’s behaviour borders on contempt of court orders as they appear intend on obstructing the applicant from enjoying fruit of the judgement of the court. This court has determined the dispute and therefore is functus officio. Parties should move to the next level of litigation. The applicants application is misconceived as an injunction cannot be issued where there is no suit pending. Moreover the injunction sought is permanent in nature and should have been sought in the suit. The applicant can only file an application for contempt. The application is dismissed with costs. Orders accordingly.
DATED, DELIVERED and SIGNED THIS 12th DAY OF MAY, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
This judgment is hereby delivered to the parties by electronic mail due to the measures restricting court operations due to COVID -19 pandemic and in light of directions issued by the Honourable Chief Justice and with the consent of the parties.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE