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ELCDismissedNot stated in judgment· [2021] KEELC 3504 (KLR)

John Mbugua Boro & 3 others v Anne Wairimu Ndung’u (As the Chairman of Urutagwo Mwiruti Women Group) [2021] KEELC 3504 (KLR)

Environment and Land Court
15 March 2021
EOE. O. Obaga
490 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused a defendant's injunction because she had no counterclaim of her own and was repeating a request the court had already rejected.

What this practically means

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Executive summary

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The Defendant in a plot dispute with the Emmaus Welfare Society brought a notice of motion dated 16th October 2020 seeking an interlocutory injunction restraining the Plaintiff society, its members, Andrew Gitonga and agents from entering, constructing on or interfering with plot Nos. 123, 124 and 125 on LR No. 6845/67 pending the hearing of the suit. She contended the plots had been sold to third parties - Lucy Nunga Chege, Simon Ngutu Ngugi and Mary Wairimu Maigwa - and that continued construction by the Respondents was exposing her to claims for alternative plots or compensation from those purchasers. The Respondents opposed through grounds of motion, describing the application as frivolous, vexatious, res judicata and an abuse of process. The court framed a single issue: whether an injunction should issue as prayed. It held the Defendant had no counterclaim capable of supporting injunctive relief and appeared to be litigating on behalf of third parties. Further, she had earlier sought substantially the same relief in an application dated 28th April 2020, which was dismissed on 30th September 2020; re-seeking the rejected relief was res judicata and an abuse of process. The application was dismissed with costs to the Respondent on 15th March 2021.

Key legal issues

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Whether the Defendant was entitled to an injunction restraining the Plaintiff and its agents from interfering with the suit properties

Holding

The injunction was refused because the Defendant had no counterclaim and was litigating on behalf of third-party plot purchasers, and the application was res judicata, the same relief having been dismissed on 30th September 2020

Reasoning

The court found the Defendant sought to litigate on behalf of third parties who purchased plots 123, 124 and 125, without any counterclaim of her own to support injunctive relief. Further, she had previously sought in an application dated 28th April 2020 to enjoin Andrew Gitonga and restrain interference with plot No.123, an application dismissed on 30th September 2020. Seeking the same rejected relief again was res judicata and an abuse of court process, warranting dismissal with costs.

p. 2

Legal principles established

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  • Injunctive relief cannot be granted to a party without a counterclaim who is in substance litigating on behalf of third parties
  • Re-litigating a relief already sought and dismissed in an earlier application in the same suit amounts to res judicata and abuse of court process

Court orders

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  1. 1.The Defendant's notice of motion dated 16th October 2020 is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Inherent jurisdiction of the court to grant interim injunctive relief in a suit pending before it

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, "John Mbugua Boro & 3 others v Anne Wairimu Ndung’u (As the Chairman of Urutagwo Mwiruti Women Group) [2021] KEELC 3504 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3504/eng@2021-03-15

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