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Court of AppealPartially AllowedCivil Appeal No 73 of 1985

Kibiy Arap Yego v Emily Tuiya w/o Tirop Arusei & another [1986] KECA 78 (KLR)

Court of Appeal
21 February 1986
1,813 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nakuru against a ruling of the High Court at Eldoret (VV Patel J) of May 16, 1985, granting the respondents, as defendants in the underlying suit, a temporary injunction and an eviction order against the appellant, the registered owner of land parcel Nandi/Lessos/324. The dispute concerned competing claims to the same land: the appellant claimed purchase and registration in 1979 with Land Control Board consent; the respondents alleged the transfer and consent were procured by fraud and counterclaimed for declaration of devolution as successors to Emily's deceased husband. The Court of Appeal, in a single authored judgment by Hancox JA concurred in by Nyarangi JA and Platt Ag JA, held that the High Court judge had gone beyond the terms of the chamber summons under Order XXXIX rule 1 by making a mandatory eviction order on an interlocutory injunction application, that such mandatory orders are rare because they may dispose of the suit finally, and that there was insufficient material to determine what the status quo was, counsel having conceded the eviction order was wrong. The court followed Thompson v Park on the status quo doctrine. The appeal was allowed, the eviction order set aside, and the case remitted to the High Court for reconsideration of the status quo and proper hearing, with liberty to file fresh affidavits. No orders as to costs were made, costs not having been sought in the Memorandum of Appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.What the status quo to be preserved pending trial was, on the material on record
  3. 3.Whether the eviction order exceeded the terms of the chamber summons under Order XXXIX rule 1

Key legal issues

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01

Whether an eviction order could properly be granted on an application for a temporary injunction

Holding

No - the order was mandatory in effect, exceeded the summons and was not sanctioned by Order XXXIX rule 1

Reasoning

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.

p. 3
02

What status quo should be preserved pending trial

Holding

The record did not disclose which status quo existed, so the judge lacked sufficient material to decide it

Reasoning

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.

p. 2
03

Weight of the registered proprietor's title at the interlocutory stage

Holding

The appellant was prima facie the registered proprietor and an eviction order should not have been granted against him on the available material

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Eviction order set aside
  3. 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. 4.No orders as to costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HA
majority

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
majority
PL
majority
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

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Costs of the appeal

Costs were not sought in the Memorandum of Appeal

p. 2

Costs

No orders for the costs of the appeal; costs not sought in the Memorandum of Appeal

Quotable passages

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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.
p. 2Final orders - appeal allowed, eviction order set aside, remittal
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.
p. 3Extent of the appeal and remittal to ascertain status quo
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.
p. 2Mandatory relief on interlocutory injunction applications
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.
p. 2Status quo doctrine, adopting Thompson v Park
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.
p. 3Interlocutory orders must not exceed the prayers in 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.
p. 2Costs order

Issues in the judgment

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minor

The coram lists Platt as 'Ag JA' (acting Judge of Appeal), which may affect the completeness of the appellate bench for binding purposes

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.