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ELCDismissedNot stated in the judgment· [2020] KEELC 901 (KLR)

Josika Mwaro Anyembe & another v Jack Nandi Okwayo & another [2020] KEELC 901 (KLR)

High Court of Kenya
27 October 2020
NMN.A. Matheka
575 words in judgment
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The bottom line

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The High Court in Kakamega dismissed a landowner's bid for an injunction because she offered no documentary proof that the land was about to be sold.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 21st September 2020, brought by the plaintiff Josika Mwayo Anyembe under Order 51 rule 1, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 rules 1-5 and Article 159 of the Constitution. The suit land, parcels No. South/Wanga Buchifi/2405 and 2406 (subdivisions of parcel No. South/Wanga Buchifi/359), is the subject of a pending suit transferred from Mumias Law Courts to the High Court at Kakamega. The plaintiff sought certification as urgent, an order restraining the defendants Jack Nandi Okwayo and Benard Maumo Anyongo from alienating, subdividing or transferring the parcels pending inter partes hearing, maintenance of the status quo prevailing at filing, and consequential orders of reversal should the parcels be transferred, subdivided or wasted during the pendency of the suit. The plaintiff asserted that the defendants were surveying the land and transferring it to third parties to defeat the suit, the exercise allegedly set for 22nd September 2020. The court found that no documentary evidence was adduced to substantiate that assertion and advised the applicants to take an early hearing date. The application was dismissed with costs in the cause. The ruling was delivered, dated and signed at Kakamega on 27th October 2020 by N.A. Matheka, Judge.

Key legal issues

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01

Whether a temporary injunction and maintenance of status quo were warranted over land parcel No. South/Wanga Buchifi/2405 and 2406

Holding

The application was not merited and was dismissed for want of evidential support of the alleged imminent transfer and subdivision.

Reasoning

The applicant alleged that the defendants were surveying the suit parcels, causing subdivision and transfer to third parties, with the exercise allegedly dated 22nd September 2020. The court noted that despite this assertion, no documentary evidence was adduced to prove it. The court also advised the applicants to take an early hearing date of the main suit instead. In the absence of substantiation, the injunction and status quo orders could not issue, and the application was dismissed with costs in the cause.

p. 2

Legal principles established

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  • An applicant for interlocutory relief must substantiate the assertions underpinning the application with documentary evidence; bare assertion is insufficient.

Court orders

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  1. 1.The application dated 21st September 2020 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 40 rules 1-5
  • Constitution of Kenya 2010Section 159
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 rules 1-5; Order 51 rule 1; Article 159 of the Constitution of Kenya 2010. The suit was transferred from Mumias Law Courts to the High Court at Kakamega.

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, "Josika Mwaro Anyembe & another v Jack Nandi Okwayo & another [2020] KEELC 901 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/901/eng@2020-10-27

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