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ELCDismissedApplication dated 29/9/2020 (within ELC Appeal, Maua ELC No. 54 of 2020)· [2021] KEELC 4623 (KLR)

RNM v RN & another [2021] KEELC 4623 (KLR)

Environment and Land Court
27 January 2021
LMLucy N. Mbugua
1,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru declined a temporary injunction over disputed matrimonial land, ruling such orders are discretionary, not automatic rights.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge, dated 27 January 2021) determined two interlocutory matters arising in an appeal by RNM against orders made in Maua ELC No. 54 of 2020. The applicant, who claims to be the wife of the 1st respondent and to hold an interest in suit land registered in his name as matrimonial property, sought a temporary injunction restraining the 2nd respondent (a purchaser) from entering, cultivating, building on or plucking tea on the land, or evicting her, pending the hearing of the appeal. She argued that orders earlier issued on 13/7/2020 lapsed for want of extraction and service within three days, and that justice should be administered without undue regard to technicalities. The respondents opposed, contending the applicant left the home in 2004, has her own tea bushes, and was indolent; the 2nd respondent also raised a preliminary objection that the suit offends section 6(2) of the Matrimonial Properties Act since the land is ancestral. The court, noting that injunctions are equitable and discretionary remedies not available as of right even if unopposed, declined the injunction: the primary suit was at an infancy stage, a related criminal case concerning tea-plucking was pending, and the trial court was better placed to interrogate the use of the land. The preliminary objection was dismissed as it was unclear which suit it targeted and the matter before the court concerned only the trial court's orders of 23.9.2020. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether temporary injunction should issue/re-issue pending the appeal

Holding

The application is declined because the primary suit is at an infancy stage and there is a related criminal case; the trial court is better placed to interrogate the extent of utilization of the suit land.

Reasoning

The court held injunctions are equitable and discretionary, not a matter of right even if unopposed. Applying the overriding objective under Section 1A of the Civil Procedure Act, the court declined to make orders that would choke or scuttle pending criminal and civil proceedings, directing the applicant to pursue the pending application before the trial court on priority basis.

p. 2
02

Whether the preliminary objection under section 6(2) of the Matrimonial Properties Act should be determined

Holding

The preliminary objection is dismissed because it is unclear which suit it targets, and this matter concerns only the orders issued by the trial court on 23.9.2020.

Reasoning

The court noted the objection did not specify whether it attacked the appeal or the primary suit. Relying on the Supreme Court's approach in Coast Professional Freighters, it declined to consider the merits of issues not taken up in the proceedings before it, and dismissed the objection.

p. 2

Legal principles established

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  • Issuance, re-issuance or extension of injunction orders is not a matter of right even if unopposed; it is an equitable discretion exercised on the circumstances of each case.
  • In dealing with an interlocutory injunction application, the court is not strictly bound by the Giella principles and may consider the circumstances of the case and the overriding objective.
  • A court will not consider merits of issues not properly before it in its appellate jurisdiction, following Coast Professional Freighters Ltd.

Court orders

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  1. 1.The notice of motion dated 29/9/2020 seeking temporary injunction is declined
  2. 2.The preliminary objection dated 14/10/2020 is dismissed
  3. 3.Each party to bear their own costs in respect of the application of 29.9.2020 and the preliminary objection of 14.10.2020
On appeal from
Magistrates' Court (Maua)
Maua ELC No. 54 of 2020
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Order 40 Rules 1 and 2 and Order 22 Rule 22 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, "RNM v RN & another [2021] KEELC 4623 (KLR)", Case Analysis (2021). Application dated 29/9/2020 (within ELC Appeal, Maua ELC No. 54 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4623/eng@2021-01-27

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