[2008] KEHC 1845 (KLR)
The court held that a mandatory injunction for vacant possession is not available at the interlocutory stage except in exceptional circumstances, which were not demonstrated in this case. The plaintiff's application essentially sought final relief before the main suit was heard and determined, which is procedurally...
Source-derived case information.
- Citation
- [2008] KEHC 1845 (KLR)
- Parties
- Plaintiff: Stephen Kipkebut t/a Riverside Lodge and Rooms; Defendant: Naftali Ogola
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 252 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Vacant Possession, Land Ownership Disputes, Ex Parte Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kipkebut t/a Riverside Lodge and Rooms
Plaintiff
Naftali Ogola
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction for vacant possession of the suit property at the interlocutory stage.
- 2 Whether the application for eviction can be granted before determination of the main suit.
- 3 Whether exceptional circumstances exist to warrant a mandatory injunction at this stage.
Ratio Decidendi
The court held that a mandatory injunction for vacant possession is not available at the interlocutory stage except in exceptional circumstances, which were not demonstrated in this case. The plaintiff's application essentially sought final relief before the main suit was heard and determined, which is procedurally improper. The court emphasized that disputes over land ownership and possession should be resolved at the substantive hearing, not through interim applications. As the defendant did not attend court, the matter proceeded ex parte, but this did not alter the legal threshold for granting a mandatory injunction. Consequently, the application was dismissed with no order as to costs.
Court Disposition
application dismissed
Orders
- The application for a mandatory injunction for vacant possession is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case ELC 252 of 2008
STEPHEN KIPKEBUT T/ARIVERSIDE LODGE AND ROOMS…… PLAINTIFF
VERSUS
NAFTALI OGOLA ………………..................……………………. DEFENDANT
RULING
APPLICATION FOR INJUNCNTION TO EVICT
DEFENDANT FROM LAND DATED 27 MAY 2008
I: Background
1. Stephen Kipkebut t/a Riverside Lodge and Rooms was allocated land situated along Jogoo Road within the City of Nairobi being LR209/14318 IR 86311 for a period of 99 year lease with effect from 1 June 1998.
2. He had obtained a loan to develop the property and is unable to begin his development because he has found the defendant on the land.
3. The defendant has been sub-letting the land to the members of public and collecting rent. There are business premises of garages being undertaken on the property.
4. The plaintiff filled this suit and prayed for a:-
i) Permanent injunction to restrain the defendants, his tenants, sub tenants and workers from trespassing on the property.
ii) For vacant possession.
iii) He prayed for assistance form the police
iv) Mense profits and costs of the suit
5. Under a certificate of urgency, the plaintiff filed on the same day of 27 May 2008, an application seeking the very same prayers as is in the plaint, being the vacant possession of the property.
6. The plaintiff is under pressure as he has taken out a loan.
7. The defendant on being served, failed to attend court. The proceeding continued under Order IXB r 3(a) Civil Procedure Rules, that the defendant had notice of this matter and was absent, the case may proceed exparte against him.
II: Application for injunction for vacant possession 27 May 2008
8. The prayers in this application has been very clearly put. It asks for the plaintiff to be restrained from being on the property. This is a mandatory prayer for an injunction which is not available unless for exceptional circumstances.
9. The plaintiff should proceed to the main suit for hearing where he wishes to have the defendant evicted from the land. It is not correct to do so by an application.
10 In a situation where the dispute is on ownership of land, then the one whom the court declares is the owner of the land has a right to bring an application to seek the eviction of the other party.
11. In this application the same is declined. It is dismissed with no orders as to costs as the defendant was absent during the hearing.
DATED THIS 18TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
O.P. Ngoge instructed by O.P. Ngoge & Associates Advocates for the plaintiff/applicant – present
M.K. Migiwa instructed by Odera Obar & Co. Advocates for the defendant/respondent - present