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ELCDismissedKericho ELC (suit number not stated in judgment)· [2017] KEELC 36 (KLR)

Jonathan Kipyegon Maina v John Kiptonui Matingwony & 4 others [2017] KEELC 36 (KLR)

Environment and Land Court
15 December 2017
JOJ. M. ONYANGO
1,419 words in judgment
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The bottom line

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A landowner lost a bid to stop others using Kericho land because their court case never actually asked for an injunction in the first place.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho determined a Notice of Motion dated 6th July 2017 by the Plaintiff/Applicant seeking an interlocutory injunction restraining the defendants from using, selling, cultivating, disposing of or trespassing on land parcel KERICHO/KAPSOIT/335 pending hearing of the suit. The application was opposed by the 2nd and 3rd Defendants through Grounds of Opposition and written submissions, while the 1st, 4th and 5th Defendants did not respond. The applicant, registered proprietor per official search, relied on the Giella v Cassman Brown principles and Panari Enterprises to argue a prima facie case and irreparable loss, conceding that no injunction had been prayed for in the Plaint but urging Article 159(2)(d). The respondents argued the injunction could not be granted in vacuo, that the applicant had admitted their occupation since 2003, and that the relief amounted to eviction before trial. The court framed three issues and held, following James Archimedes Gichana v Pyrethrum Board, that an injunction cannot be granted in vacuo where the pleadings contain no such prayer, as the application would not sound with Order 40 rules 1(a) and 1(b). On the merits, it found the injunction effectively mandatory against occupants of over 14 years and, applying Washington Okeyo and Locabail International Finance, held that no special circumstances warranted a mandatory injunction at the interlocutory stage, which demands a higher standard of assurance. The proper forum for eviction is a full hearing. The application was dismissed with costs to the 2nd and 3rd Respondents on 15th December 2017.

Key legal issues

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01

Whether an injunction can be granted in vacuo where the Plaint contains no prayer for injunction

Holding

No - the application is incompetent absent a prayer for injunction in the pleadings; the applicant must first amend.

Reasoning

Relying on James Archimedes Gichana v Pyrethrum Board of Kenya, the court held that Order 40 rules 1(a) and 1(b) require a clear prayer for injunction in the suit, and Order 2 rule 6 bars departure from pleadings in evidence or interlocutory applications without amendment. Although counsel for the applicant invoked Article 159(2)(d) to urge the court to disregard this omission, the court found the application did not sound with the rules.

p. 2
02

Whether the injunction sought, being effectively mandatory against long-standing occupants, could be granted interlocutorily

Holding

No - the injunction would amount to eviction of parties in occupation since 2003; it is mandatory in nature and no special circumstances were shown.

Reasoning

It was common ground that the respondents had occupied the suit land since 2003. Granting the injunction would evict them before trial. Citing Washington Okeyo v Kenya Breweries and Locabail International Finance, the court applied the rule that mandatory injunctions are not granted at interlocutory stage absent special circumstances, and require a higher sense of assurance than prohibitory injunctions. The proper forum for eviction is a full hearing.

p. 2

Legal principles established

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  • An interlocutory injunction cannot be granted where the suit does not contain a prayer for injunction; the applicant must first amend pleadings.
  • A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances, and only on a higher standard of assurance than for a prohibitory injunction.

Court orders

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  1. 1.The application dated 6th July 2017 seeking an interlocutory injunction is dismissed with costs to the 2nd and 3rd Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Act (Civil Procedure Rules)Order 40 rules 1(a) and 1(b)
  • Civil Procedure RulesOrder 2 rule 6

Cases cited (5)

  • Giella v Cassman Brown & Company Limited
    (1973) E.A 358
  • Panari Enterprises Limited v Lijoodi & 2 Others
    (2014) eKLR
  • James Archimedes Gichana v Pyrethrum Board of Kenya
    Nakuru HCCC No. 237 of 2007
  • Washington Okeyo v Kenya Breweries Limited
    Civil Appeal No. 332 of 2000
  • Locabail International Finance Limited v Agro Export and Another
    (1986) 1 ALL ER 901
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court under the Civil Procedure Rules (Order 40) to grant interlocutory injunctions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jonathan Kipyegon Maina v John Kiptonui Matingwony & 4 others [2017] KEELC 36 (KLR)", Case Analysis (2017). Kericho ELC (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/36/eng@2017-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.