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ELCDismissedApplication dated 19th January, 2015 (appeal against Wajir SPMCC No. 2 of 2013)· [2017] KEELC 2203 (KLR)

Osman Adan Abdi Irobe v Nadhifa B. Abdisamad [2017] KEELC 2203 (KLR)

High Court of Kenya

25 July 2017

KBK. BOR

875 words in judgment

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The bottom line

The High Court dismissed a landowner's injunction bid because the application never identified the disputed plot by its land reference number.

What this practically means

Executive summary

The Appellant, who sued the Respondent over a plot in Wajir town and lost both the suit (Wajir SPMCC No. 2 of 2013) and a review application, filed an appeal seeking reinstatement of the dismissed suit and moved the court by application dated 19th January 2015 for an interim injunction to restrain the Respondent from encroaching on, transferring or interfering with the suit property pending the appeal. The Appellant relied on a 1998 Wajir County Council receipt for plot transfer fees and an undated transfer form for L.R. No. R2254. The Respondent opposed, deponing that he occupied and had developed plot R5928, a different and distinct plot. The Respondent raised three objections: the prayers did not identify the property, rendering any orders vague and unenforceable; the two plot numbers were distinct; and the application was wrongly brought under Order 40 instead of Order 42 rule 6 as an injunction pending appeal, with no arguable appeal demonstrated. The Respondent also challenged the commissioning of the supporting affidavit under section 4 of the Statutory Declarations Act. The court agreed that the prayers, which omitted the land reference number, were vague and incapable of enforcement, found no demonstration that plots R2254 and R5928 were the same, and held that the Appellant had not met the criteria for injunctive relief. The application was dismissed with costs to the Respondent on 25th July 2017.

Key legal issues

Vagueness of the prayers sought

Holding

The application failed because the prayers did not give particulars of the land, making any orders issued unenforceable.

Reasoning

The court reproduced the prayers and noted that they did not describe the Suit Property or give its land reference number. It accepted the Respondent's submission that orders in such terms would be vague and incapable of enforcement. This defect alone was sufficient to defeat the application regardless of the merits.

p. 2

Identity of the Suit Property and the Respondent's plot

Holding

The Appellant did not demonstrate that plot R2254, which he claims, is the same plot R5928 on which the Respondent is in occupation and has developed.

Reasoning

The Appellant relied on a receipt for plot transfer fees and a transfer form for L.R. No. R2254, while the Respondent deponed to occupation and development of plot R5928, annexing photographs. The court found no evidence linking the two plots and held the Appellant had not discharged the burden of showing that the Respondent's development was on the claimed property.

p. 2

Criteria for injunctive relief

Holding

The Appellant failed to meet the criteria for the grant of an injunction.

Reasoning

Although the Appellant urged that a prima facie case with a probability of success had been demonstrated and that the appeal would be rendered nugatory, the court found, in light of the vagueness of the prayers and the failure to connect the two plots, that the criteria for injunctive relief were not satisfied.

p. 2

Legal principles established

Orders of injunction that do not give particulars, including the land reference number, of the property in respect of which they are sought are vague and incapable of enforcement.

Court orders

1.The application dated 19th January, 2015 is dismissed
2.Costs of the application to the Respondent

Authorities

Legislation

Civil Procedure RulesOrder 40
Civil Procedure RulesOrder 42 rule 6
Statutory Declarations Actsection 4

On appeal from: Chief Magistrate's Court, Wajir; Wajir SPMCC No. 2 of 2013
Jurisdiction invoked: Appellate jurisdiction over an appeal from the magistrate's court; application brought under Order 40 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Osman Adan Abdi Irobe v Nadhifa B. Abdisamad [2017] KEELC 2203 (KLR)", Case Analysis (2017). Application dated 19th January, 2015 (appeal against Wajir SPMCC No. 2 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2203/eng@2017-07-25

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