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ELCOtherNot stated in the judgment· [2019] KEELC 3992 (KLR)

Isaac Nyagara Nyamwaya v Stephen Kwemoi Matui [2019] KEELC 3992 (KLR)

Environment and Land Court
27 March 2019
MNMwangi Njoroge
1,151 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 refused to grant a permanent injunction before trial, confirming final relief cannot be awarded early.

What this practically means

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Executive summary

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The plaintiff, acting as legal attorney of Leah Boyani Ratemo Kebaso, moved the court by an application dated 15th January 2019 seeking a permanent injunction restraining the defendant, his relatives, servants and agents from using, interfering with, blocking or barring access to land parcel Kwanza/Namanjalala Block 5/119 pending the hearing of the application and the main suit. The application was brought under Sections 3 and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, on the grounds that the plaintiff was the registered absolute owner of the parcel and that the defendant had been trespassing on it since September 2018 with an intention to plough. The defendant opposed the application through grounds of opposition and a replying affidavit, asserting that he had purchased the suit parcel, had been in continuous, uninterrupted and quiet possession, and that the plaintiff's title was illegally acquired. He had also caused the seller, Hassan Kisongoji Service, to be arrested and charged in Kitale Criminal Case No. 4757/2018. A supplementary affidavit of the Secretary of Trans-Nzoia Investment Company Limited explained that the company had transferred parcel 119 to the plaintiff after Hassan identified it as the parcel sold. The court held that the application, seeking a permanent injunction at an interlocutory stage, was misconceived: granting it would determine a greater part of the claim before trial. Following the Court of Appeal's decision in Stephen Kipkebut and the authorities therein, the court struck out the application dated 15th January 2019 with costs. The main suit remains pending.

Key legal issues

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01

Whether a permanent injunction may issue on an interlocutory application

Holding

The court held that a permanent injunction cannot issue at an interlocutory stage because granting it would determine a greater part of the claim before trial.

Reasoning

The court observed that the application sought a permanent injunction, which is one of the final prayers in the plaint. Granting it at an interlocutory stage would dispose of the substance of the claim without a full trial. Drawing on the Court of Appeal's decision in Stephen Kipkebut, which adopted the principle that relief amounting to a major part of the claim must not be granted interlocutorily, the court declined the relief and struck out the application with costs.

p. 2

Legal principles established

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  • A permanent injunction, being a final or major relief, cannot be granted at an interlocutory stage

Court orders

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  1. 1.The application dated 15th January 2019 struck out with costs
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4 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, "Isaac Nyagara Nyamwaya v Stephen Kwemoi Matui [2019] KEELC 3992 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3992/eng@2019-03-27

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