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ELCPartially AllowedApplication dated 20th May, 2019 (Certificate of Urgency)· [2019] KEELC 3191 (KLR)
Gilbert Joseph Kibunja alias Gilbert Joseph Kibunja alias Gilbert Joseph Kabunja v County Government of Tharaka Nithi & another [2019] KEELC 3191 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This was an ex-parte application dated 20th May 2019, brought through a Certificate of Urgency by Gilbert Joseph Kabujia against two respondents. The applicant sought certification as extremely urgent and two interim injunctions restraining the 1st respondent from trespassing on, constructing on, entering, selling, transferring or in any way interfering with his quiet possession and ownership of Adjudication Section Kajuki/Kamutiria/P.No.2022, one pending determination of the application and the other pending the hearing of Appeal No. 76 of 2019 to the Minister. The dispute concerned ancestral land the applicant claimed to have inherited from his father, who together with earlier generations had allegedly possessed it for over one hundred years. The applicant asserted that pending the appeal, the 1st respondent had on or about 13th May 2019 put up illegal structures to defeat the appeal, and that the Tribunal before which the matter lay lacked power to issue injunctions, hence the court's inherent jurisdiction should be invoked to preserve the status quo. At the ex-parte stage, counsel Mr. Mungai Wainaina asked the court to rely on the pleadings and grant the orders sought, and confirmed service on Mr. Kiongo for the 2nd respondent. P.M. Njoroge J declined to certify the application urgent but directed it be heard on a priority basis. Prayer 2 was granted, restraining the 1st respondent from interfering with the suit property pending determination of the application. The applicant was directed to serve the respondents within seven days, with an inter partes hearing set for 12th June 2019. Costs were ordered to be in the cause.
Key legal issues
#01
Whether to grant an interim injunction preserving possession of adjudication section Kajuki/Kamutiria/P.No.2022 pending an appeal before the Minister
Holding
Prayer 2 granted ex-parte; the 1st respondent restrained from trespassing, constructing, entering, selling, transferring or otherwise interfering with the applicant's quiet possession and ownership pending determination of the application
Reasoning
The court perused the pleadings and heard the applicant's advocate orally. It found merit at the ex-parte stage, noting the dispute was before the 2nd respondent (Tribunal) with appeal no. 76 of 2019 pending before the Minister, structures had been put up on about 13th May 2019, and the Tribunal lacked power to issue injunctions, warranting the court's intervention to preserve the substratum of the appeal. However, urgency certification was refused and service and an inter partes hearing were directed.
p. 2
Legal principles established
#- Where a dispute over adjudicated land is pending on appeal before the Minister, the High Court may, in the interim and at the ex-parte stage, restrain interference with the suit property to protect the substratum of the appeal
Court orders
#- 1.The application is NOT certified urgent BUT will be heard on priority basis
- 2.Prayer 2 is granted (interlocutory injunction restraining the 1st respondent from trespassing, constructing, entering, selling, transferring or interfering with the applicant's quiet possession and ownership of Adjudication Section Kajuki/Kamutiria/P.No.2022 pending the hearing and determination of the application)
- 3.The applicant is directed to serve the respondents within 7 days of today
- 4.Parties to come to court for interpartes hearing on 12th June, 2019
- 5.Costs are to be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to preserve the substratum of a pending appeal to the Minister under the land adjudication regime
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbert Joseph Kibunja alias Gilbert Joseph Kibunja alias Gilbert Joseph Kabunja v County Government of Tharaka Nithi & another [2019] KEELC 3191 (KLR)", Case Analysis (2019). Application dated 20th May, 2019 (Certificate of Urgency). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3191/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.