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ELCDismissed· [2017] KEELC 78 (KLR)

Samwel Orwa Wayuga v Church Commissioners for Kenya of The Anglican Church of Kenya [2017] KEELC 78 (KLR)

Environment and Land Court
8 March 2017
GOG. M. A. Ongondo
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused a church extra protection over disputed land because the existing judgment already gave it twelve months to move out before enforcement.

What this practically means

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Executive summary

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The Defendant/Applicant, a church represented by Oguttu Mboya & Company Advocates, brought a Notice of Motion dated 1st December 2016 under Order 40 Rules 1, 2, 4 and 10 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, seeking interim and temporary injunctions and maintenance of status quo over Plot No. 3699, Kasgunga/Kamreri Adjudication Section, particularly the portion where its church stands, pending an intended appeal to the Court of Appeal. The Plaintiff/Respondent opposed through grounds of opposition and a replying affidavit sworn by Maurice Odhiambo Gambi, arguing that the court had only decreed a permanent injunction against the defendant, suspended for twelve months, that ownership of the plot was never in issue, that the application was vague, hearsay-laden and an abuse of process, and that Plot No. 3700 was not on the suit land. The court, G. M. A. Ongondo, J, noted that judgment had been entered for the plaintiff on 27th June 2016 with a permanent injunction against the defendant suspended for twelve months to allow the church to find alternative premises. Applying National Bank of Kenya v Shimmers Plaza Limited on the discretionary nature of injunctions, the court held that the suspension period was still running, the parties had to abide by the judgment, and the plaintiff could enforce the decree only after expiry of the twelve months. The status quo would stand only for that twelve-month period. The application was accordingly disallowed, with each party bearing own costs under the proviso to Section 27(1) of the Civil Procedure Act.

Key legal issues

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Whether the court could grant injunctive/status quo relief pending an intended appeal where the judgment had already suspended the permanent injunction for twelve months

Holding

The application was disallowed; the twelve-month suspension in the judgment of 27th June 2016 already maintained the status quo, and the plaintiff could enforce the decree only after its expiry.

Reasoning

The court had already exercised its discretion in the 27th June 2016 judgment by suspending the permanent injunction for twelve months to allow the defendant to find alternative worship premises. That suspension period was still running, parties must abide by the judgment, and the plaintiff could enforce the decree only after the twelve months. No additional injunctive or status quo orders pending appeal were warranted.

p. 3

Legal principles established

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  • An injunction is an equitable and discretionary remedy whose duration is at the sole discretion of the trial judge depending on the circumstances of each case

Court orders

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  1. 1.Application dated 1st December 2016 by the Defendant/Applicant disallowed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 4 and 10
  • Civil Procedure Rules, 2010Sections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 19 rule 3
  • Constitution of Kenya, 2010Articles 28, 48, 159, 165
  • Civil Procedure Act (Cap 21)Section 27(1)

Cases cited (2)

  • National Bank of Kenya Limited vs Shimmers Plaza Limited
    (2009) 1 KLR 278 at 283
  • Abel Salim & Another vs Okong'o & others
    (1976-80) 1 KLR 53 at 60
Jurisdiction invoked
Articles 28, 48, 159 and 165 of the Constitution, 2010; Order 40 Rules 1, 2, 4 and 10 and Sections 1A, 1B, 3A, 63(e) Civil Procedure Rules / Civil Procedure Act

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, "Samwel Orwa Wayuga v Church Commissioners for Kenya of The Anglican Church of Kenya [2017] KEELC 78 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/78/eng@2017-03-08

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