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ELCDismissedNot stated in the judgment· [2021] KEELC 4015 (KLR)

Lucy Nyawira Gachoki & 2 others v Faith Karioko Gachoki & another [2021] KEELC 4015 (KLR)

Environment and Land Court
11 March 2021
AKA.K. Kaniaru
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Embu court dismissed a land injunction bid because the application only asked for protection during the hearing itself, not the whole case.

What this practically means

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Executive summary

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This ruling by A.K. Kaniaru, Judge, of the Environment and Land Court at Embu determines a notice of motion dated 17th September, 2020 by the three Plaintiffs (Lucy Nyawira Gachoki, Jane Nyambura Mugera and Richard Frank Ngungi) against the Defendants (Faith Karioko Gachoki and Machson Muthike Mbogo), brought under Order 40 Rules 1 and 4 and Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicants sought a temporary injunction restraining the 2nd Defendant from selling, alienating or dealing with parcel MBEERE/WACHORO/458, alleging that the 1st Defendant, the 2nd wife of the late Francis Gachoki Mbogo, held the land in trust for the 2nd and 3rd Applicants and that the Defendants fraudulently transferred it to the 2nd Defendant, who was disposing of it. The Respondents denied the trust, asserting the 1st Respondent was allotted the land in her own right and transferred it voluntarily, while of sound mind. The Applicants relied on Giella v Cassman Brown, which the Respondents also invoked, contending the threshold was not met. The court found that prayer 2, as pleaded, sought an injunction only pending determination of the application itself - an order already granted - and was therefore spent. No prayer had been made for an injunction pending determination of the suit, and the court, being bound by the pleadings, could not consider the parties' extensive submissions on that unpleaded relief. The motion was dismissed with no order as to costs.

Key legal issues

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01

Whether a spent prayer can sustain an application

Holding

The application is spent and must be dismissed; the court cannot determine a prayer that has been exhausted or grant relief not pleaded

Reasoning

Prayer 2 of the motion sought an interim injunction only pending hearing and determination of the application itself. That interim order had already been granted during the pendency of the application, so the prayer was exhausted. Both parties' extensive submissions addressed a non-existent prayer - an injunction pending determination of the suit - which was never pleaded. Being bound by the pleadings, the court's hands were tied and the application fell for dismissal.

p. 2

Legal principles established

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  • Parties are bound by their pleadings and the court cannot grant relief that was not sought; an injunction prayer expressed to be pending hearing and determination of the application does not extend beyond the determination of that application

Court orders

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  1. 1.The notice of motion dated 17th September, 2020 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 40 Rule 1 and 4
  • Civil Procedure Rules, 2010Order 51 (amendment) Rules 2020
  • Civil Procedure Rules (former)Order XXXIX Rule 1

Cases cited (1)

  • Giella Vs Cassman Brown
    [1973] EA 358
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 and 4 and Order 51 of the Civil Procedure Rules, 2010

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, "Lucy Nyawira Gachoki & 2 others v Faith Karioko Gachoki & another [2021] KEELC 4015 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4015/eng@2021-03-11

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