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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 3272 (KLR)

Saraphine Mbae Rithaa v Faustino Kangori M’Nairobi [2019] KEELC 3272 (KLR)

High Court of Kenya
15 May 2019
PNP. M. Njoroge
1,564 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 protected a land buyer's occupation with temporary orders, but refused an injunction worded to give final relief before both sides were heard.

What this practically means

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Executive summary

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This was an ex parte interlocutory application dated 13th May 2019 by Seraphine Mbae Rithaa, the plaintiff/applicant, seeking inhibition orders over land parcel MUTHAMBI/KANGUNDU/445 and a temporary injunction restraining the defendant from ejecting, selling, leasing, charging or otherwise interfering with the applicant's occupation of one acre of that land. The application, supported by the applicant's affidavit sworn on 13th May 2019, explained that the suit land was registered in the respondent's name following an adjudication dispute; the respondent's father had been allotted an excised one-acre parcel (No. 1475) after Objection No. 67 of 1995, which he sold to the applicant by a written sale agreement. The applicant had occupied, cultivated and improved the land since 1998, survived a criminal case and a dismissed eviction suit brought by the respondent, and now faced fresh threats of eviction and possible alienation of the land. Counsel for the applicant, Miss Kithaka, relied on the pleadings and asked the court to grant prayers b and d. The court, per P. M. Njoroge J, held that prayer d as framed had a veneer of finality and could not be granted in that form. The court granted prayer b (inhibition over the suit land pending hearing of the application) and granted prayer d strictly pending the hearing and determination of the application, directing that the application be heard inter partes on 29th May 2019. No costs order was made.

Key legal issues

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01

Whether prayer d, as framed, was grantable at the ex parte stage

Holding

The court refused to grant the prayer in the form sought because it was framed to run pending the hearing and determination of the whole suit, giving it a final character; it was granted only pending the hearing of the application itself

Reasoning

The judge observed that prayer d sought an injunction to run until the suit was determined, which effectively granted the applicant final relief at an interlocutory stage. Recognising this defect, the court exercised its discretion to grant the injunction but strictly limited its duration to the hearing and determination of the application, preserving the inter partes hearing scheduled for 29.5.2019.

p. 3
02

Whether an inhibition order should issue over the suit land

Holding

Prayer b, seeking inhibition against dealings with MUTHAMBI/KANGUNDU/445 pending the hearing and determination of the application, was granted

Reasoning

The applicant demonstrated occupation since 1998 under a purchase from the respondent's father, the respondent's threats of eviction, and the danger of alienation of land registered in the respondent's name. The court found it necessary to preserve the suit property and granted the inhibition pending the inter partes hearing of the application.

p. 3

Legal principles established

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  • An interlocutory injunction whose terms extend to the final determination of the suit carries a veneer of finality and cannot be granted in that form at the ex parte stage

Court orders

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  1. 1.Prayer b granted - order of inhibition restraining any dealings with land parcel no. MUTHAMBI/KANGUNDU/445 pending the hearing and determination of the application
  2. 2.Prayer d granted STRICTLY pending hearing and determination of this application - temporary injunction restraining the defendant from ejecting, selling, leasing, charging or otherwise interfering with the plaintiff's possession of one acre out of the suit land
  3. 3.Application to be heard inter partes on 29.5.2019
Jurisdiction invoked
Not stated in the judgment (ex parte interlocutory application under the court's inherent/civil procedure powers)

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, "Saraphine Mbae Rithaa v Faustino Kangori M’Nairobi [2019] KEELC 3272 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3272/eng@2019-05-15

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