Kibiy Arap Yego v Emily Tuiya w/o Tirop Arusei & another [1986] KECA 78 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court judge, on an interlocutory application for a temporary injunction, could make a mandatory/eviction order against the registered proprietor
- 2.What the status quo to be preserved pending trial was, on the material on record
- 3.Whether the eviction order exceeded the terms of the chamber summons under Order XXXIX rule 1
Key legal issues
#Whether an eviction order could properly be granted on an application for a temporary injunction
No - the order was mandatory in effect, exceeded the summons and was not sanctioned by Order XXXIX rule 1
The respondents' chamber summons sought only to restrain the appellant from alienating, ploughing, fencing or taking possession pending trial. An order that the registered proprietor vacate and deliver possession was mandatory relief, not a restraint, and such orders at interlocutory stage are rare because they may dispose of the suit finally. Counsel for the respondents conceded the judge went beyond the application.
What status quo should be preserved pending trial
The record did not disclose which status quo existed, so the judge lacked sufficient material to decide it
Each party claimed a different status quo: forcible entry by the appellant versus possession as registered proprietor. Thompson v Park shows a court will not preserve a state of affairs created by illegal acts. Because the affidavits and pleadings were unclear, and the extract from the proprietorship register was not produced, the matter had to be remitted for fresh evidence and judicial determination of the status quo.
Weight of the registered proprietor's title at the interlocutory stage
The appellant was prima facie the registered proprietor and an eviction order should not have been granted against him on the available material
A certificate of search showed registration as from March 20, 1984, and the plaint alleged registration at filing. Although fraud was alleged in the defence and counterclaim, and the appellant may not have been first registered owner, that dispute could not be resolved summarily by evicting the registered owner on an injunction application.
Legal principles established
#- A litigant cannot wrongfully bring about a state of affairs and then seek an injunction to preserve that state of affairs as the status quo
- A mandatory order should not be made on an interlocutory application for a temporary injunction where the material is insufficient and it may dispose of the suit finally
- An interlocutory order must not exceed the terms of the application; Order XXXIX rule 1 does not sanction an eviction order on a temporary injunction application
Court orders
#- 1.Appeal allowed
- 2.Eviction order set aside
- 3.Case remitted to the High Court for proper hearing and determination, with liberty to the parties to file fresh affidavits on the status quo
- 4.No orders as to costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment, holding that the judge exceeded the application by granting an eviction order on an interlocutory injunction application, that mandatory orders at interlocutory stage are rare, and proposing that the appeal be allowed, the eviction order set aside and the matter remitted.
For these reasons I also would allow the appeal, set aside the eviction order and remit the case for proper hearing and determination by the High Court.p. 2
- On appeal from
- High Court of Kenya
- Civil Case No 29 of 1983
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a High Court interlocutory ruling
Relief refused
#Costs of the appeal
Costs were not sought in the Memorandum of Appeal
Costs
No orders for the costs of the appeal; costs not sought in the Memorandum of Appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons I also would allow the appeal, set aside the eviction order and remit the case for proper hearing and determination by the High Court.
I would therefore allow the appeal to the extent that the eviction order be set aside and the matter be reconsidered to ascertain what the status quo really is, pending the hearing of the suit.
the learned judge made a mandatory order on an interlocutory application for a temporary injunction. That is very rare thing to be done, for it may have the effect of disposing finally of the suit.
a litigant cannot wrongfully and illegally bring about a state of affairs and then apply to the court to preserve that state of affairs as the status quo by way of injunction.
The learned judge ordered the plaintiff to vacate and deliver up vacant possession of the land, even though he is the registered owner. It will be seen that this exceeded the terms of the summons.
I would make no orders for the costs of this appeal, which, in any event, are not sought in the Memorandum of Appeal.
Issues in the judgment
#The coram lists Platt as 'Ag JA' (acting Judge of Appeal), which may affect the completeness of the appellate bench for binding purposes
The judgment refers to the respondents applying for the injunction as 'defendants in the High Court' although the High Court suit (Civil Case No 29 of 1983) was filed by the appellant as plaintiff; roles are used inconsistently in the header
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibiy Arap Yego v Emily Tuiya w/o Tirop Arusei & another [1986] KECA 78 (KLR)", Case Analysis (1986). Civil Appeal No 73 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/78/eng@1986-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.