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ELCAllowedApplication dated 2nd August 2016 (in the suit filed 10th March 2015)· [2017] KEELC 2415 (KLR)

Jane M. Kiano v Chema Ngolenya Mudzi [2017] KEELC 2415 (KLR)

Environment and Land Court
13 July 2017
JOJ. O. Olola
1,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court varied an injunction so no one could be evicted from disputed property without first being heard.

What this practically means

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Executive summary

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This was an application dated 2nd August 2016 by the 2nd to 6th Defendants, brought under Order 40 Rules 1, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Plaintiff from disposing of, transferring, advertising for sale or interfering with the suit property pending hearing of the suit. The Defendants are Administrators and beneficiaries of the Estate of the late Ngolanya Mudzi Kitavi and were apprehensive that executing the injunction orders granted by Angote J. on 9th June 2015 would lead to their eviction without a hearing. The Plaintiff opposed on grounds that the court lacked jurisdiction to review its own orders or to grant injunctions against its own orders, and that refusal to set aside the orders could only be appealed to the Court of Appeal. The court noted that the 2nd to 6th Defendants had been enjoined by Angote J.'s Ruling of 1st April 2016 for the purpose of ascertaining their entitlement to the property, and that the injunction orders were mandatory in nature; executing them against parties who were not before the court when they were granted would occasion great prejudice. Applying the right to be heard and the interest of justice, the court varied the initial order of injunction to the extent that the status quo be maintained pending hearing and determination of the suit. Costs of the application were to be in the cause.

Key legal issues

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01

Whether the 2nd to 6th Defendants, enjoined after the injunction issued, could be protected from its execution

Holding

The injunction orders, being mandatory in nature, could not be executed against parties who were not before the court when they were issued; the order was varied to maintain the status quo.

Reasoning

The 2nd to 6th Defendants were enjoined by Angote J.'s Ruling of 1st April 2016 for the purpose of ascertaining their entitlement to the property. The learned Judge reasoned they should be heard before a conclusive ownership decision. Executing mandatory injunction orders against them when they were not parties at the time of issuance would occasion great prejudice. Preservation of the suit property and maintenance of the status quo best served the interests of justice.

p. 2

Legal principles established

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  • A party must be afforded an opportunity to be heard before their rights are prejudiced or affected.

Court orders

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  1. 1.The initial order of injunction granted by Angote J. on 9th June 2015 varied so that the status quo be maintained over the suit property pending hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 4 and 10
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (2)

  • JMK -vs- MWM & Another
    (2015) eKLR
  • Solomon Odira Okello & Another -vs- Esther Loboso
    (2014) eKLR
Jurisdiction invoked
Order 40 Rules 1, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the 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, "Jane M. Kiano v Chema Ngolenya Mudzi [2017] KEELC 2415 (KLR)", Case Analysis (2017). Application dated 2nd August 2016 (in the suit filed 10th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2415/eng@2017-07-13

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