[2012] KEHC 5001 (KLR)
The court held that the proper procedure for challenging or clarifying the orders in question was for the applicant to either appeal or seek review under Order 45 of the Civil Procedure Rules. The court found no evidence of prejudice or injustice suffered by the applicant that would warrant the exercise of its...
Source-derived case information.
- Citation
- [2012] KEHC 5001 (KLR)
- Parties
- Plaintiff: Timothy Ingosi and 87 Others; Respondent: Kenya Forestry Reserve; Respondent: Hon. Attorney General; Respondent: Commissioner for Lands
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 12 of 2009
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Interpretation of Court Orders
- Outcome
- application dismissed
- Legal Topics
- Interpretation of Court Orders, Status Quo Orders, Injunctive Relief, Res Judicata, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Ingosi and 87 Others
Plaintiff
Kenya Forestry Reserve
Respondent
Hon. Attorney General
Respondent
Commissioner for Lands
Respondent
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Interpretation of Court Orders
Legal Issues
- 1 Whether the court should interpret and harmonize the status quo and injunctive orders previously issued.
- 2 Whether the application is res judicata or an abuse of court process.
- 3 Whether the court should exercise its discretion to interpret the orders in the absence of evidence of prejudice or injustice.
Ratio Decidendi
The court held that the proper procedure for challenging or clarifying the orders in question was for the applicant to either appeal or seek review under Order 45 of the Civil Procedure Rules. The court found no evidence of prejudice or injustice suffered by the applicant that would warrant the exercise of its discretion to interpret the orders. The application was therefore found to be lacking in merit and was dismissed. Costs were ordered to be in the cause.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL SUIT NO. 12 OF 2009
TIMOTHY INGOSI AND 87 OTHERS……...............................…………PLAINTIFFS
VERSUS
KENYAFORESTRY RESERVE
HON. ATTORNEY GENERAL…….............................…..……RESPONDENTS
COMMISSIONER FOR LANDS
RULING
This application came up by way of Notice of Motion dated the 2nd February, 2012 under Section 3A of the Civil Procedure Rules and Order 50 Rules (1) and (16) of the Civil Procedure Rules.
The Applicant’s prayer was that the court interprets and harmonizes the Order for “Status Quo” issued on the 20th March, 2010 and the injunctive orders granted on the 23rd Jan, 2012. Both Orders were granted pending the hearing and final determination of the suit.
The Applicant deponed that the two orders were causing a problem on the ground as the Forestry Guards had stopped the Applicant and his co-Applicants from cultivating the land.
The Applicant submitted that the application was meritorious and was not res-judicata nor was it an abuse of the due process of the court.
He prayed that court exercises its unfettered discretion under Section 3A and interpret and define the scope of the orders.
The application was opposed by Counsel for the 1st Respondent and Counsel for both the 2nd and 3rd Respondent.
Counsel for the 1st Respondent submitted that the application was res-judicata and that the court could not re-visit the same issue. That the application lacked merit and should be dismissed with costs.
Counsel for the 2nd and 3rd Respondent submitted that the Order of 21st Jan 2012 was very explicit. That the proper forum was for the Applicant to either appeal against the said orders or apply to have the same reviewed.
The method adopted by the Applicant was therefore an abuse of due process of the court.
Their prayer was that the court should decline to give an order for interpretation and dismiss the application.
After hearing all the Counsels for the Applicant and Respondents, I find that the issues for determination are as follows:
i)The exercise of the courts discretion.
ii)Interpretation of the two orders.
iii)Costs.
On the issue of interpretation I am inclined to agree with Counsel for the Respondent that the proper forum would be for the Applicant to either appeal or invoke the provisions of Order 45 of the Civil Procedure Rules.
Order 45 Rule 1(b) provides for review as follows;
“…………………..on account of some mistake or error apparent on the face of the record, or for any sufficient reasons, desires to obtain a review of the decree or order……………………” (Emphasis)
Upon invoking the said provisions the court is then entitled to exercise its discretion.
The court also has wide powers in exercising its discretion in cases where there is prejudice or injustice but there must be sufficient evidence showing such prejudice or injustice.
I find that this is not a proper case for this court to exercise its discretion as no evidence has been brought by the Applicant in support of any prejudice or injustice suffered.
I find the application lacking in merit and the same is dismissed. Costs shall be in the cause.
DATED AND DELIVERED AT ELDORET THIS 15TH DAY OF March 2012.
A.MSHILA
JUDGE