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ELCStruck OutNot stated in the judgment· [2017] KEELC 2571 (KLR)

Josephat Muchiri Rugano & another v Kirinyaga County Government [2017] KEELC 2571 (KLR)

Environment and Land Court (referred to in the judgment simply as 'this Court'; the name of the suit land, KABARE/NYAGATI/780, indicates a land dispute)
19 May 2017
BOB. N. Olao
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land injunction because the underlying suit was filed too late and time had never been extended.

What this practically means

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Executive summary

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The plaintiffs, suing as legal representatives of the Estate of Rugano Kaburia (deceased), filed suit on 27th July 2015 alleging that the defendant registered land parcel KABARE/NYANGATI/780 into its name on or before 7th September 1999 without compensating the deceased, who died in February 2000. They sought cancellation of the title, general damages, and costs, and simultaneously applied for a temporary injunction to restrain the defendant from interfering with their occupation of the land. Temporary orders were granted on 20th July 2015 and repeatedly extended as settlement talks were explored. On 1st September 2015 the plaintiffs themselves applied for extension of time, admitting the suit had been filed out of time, but that application was never prosecuted. When the injunction application came up for determination by written submissions, Olao J held that Order 40 Rule 1 of the Civil Procedure Rules permits a temporary injunction only where a suit is pending, applying the Court of Appeal's decision in Godfrey Ndungu Theuri v Law Society of Kenya. Since the plaintiffs' own application for extension of time remained unprosecuted and leave had not been granted, there was no proper plaint before the Court on which interim relief could be based. The court struck out the Chamber Summons dated 21st July 2015 with costs and discharged the interim orders issued on 29th July 2015 and extended thereafter. The main claim and the extension-of-time application remain otherwise unaffected by this ruling.

Key legal issues

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01

Whether a temporary injunction may be granted where the suit is admittedly filed out of time and leave for extension of time has not been granted

Holding

No. The application for temporary injunction was struck out because there was no proper plaint pending before the Court on which such an application could be based.

Reasoning

The plaintiffs themselves conceded in their application dated 1st September 2015 and supporting affidavit that the suit was filed out of time, which is why they sought extension of time. That application was never prosecuted and the leave sought was never granted. Applying Order 40 Rule 1 of the Civil Procedure Rules and the Court of Appeal's decision in Godfrey Ndungu Theuri v Law Society of Kenya, the court held that a temporary injunction presupposes a pending suit; without a competent action there is no basis for interim relief.

p. 2

Legal principles established

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  • An application for temporary injunction can only be made where there is a suit pending determination; it is the pendency of a suit that warrants the grant of a temporary injunction

Court orders

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  1. 1.The Chamber Summons filed on 27th July 2015 is struck out with costs
  2. 2.The orders issued on 29th July 2015 and extended thereafter are discharged

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (1)

  • GODFREY NDUNGU THEURI VS LAW SOCIETY OF KENYA
    C.A Civil Appeal No. 5 of 1985 (1988) e K.L.R
On appeal from
null
null
Jurisdiction invoked
Not expressly invoked; the application is founded on Order 40 Rule 1 of the Civil Procedure Rules

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, "Josephat Muchiri Rugano & another v Kirinyaga County Government [2017] KEELC 2571 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2571/eng@2017-05-19

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