Antony Gakuru Maina v Mourice Lorukia Lomilio [2022] KEELC 492 (KLR)
The bottom line
#A Kenyan court refused to stop a land occupier who was already in the property, because injunctions prevent future harm, not past occupation.
What this practically means
#Executive summary
#Key legal issues
#Availability of a temporary injunction where the complained-of act has already occurred
A temporary injunction cannot issue where the defendant is already in occupation; granting it would amount to a mandatory injunction or eviction at an interlocutory stage.
Both the supporting affidavit and counsel's submissions admitted that the Defendant was in occupation of the suit premises. A temporary injunction restrains threatened or ongoing acts, not completed ones; nor can it effect eviction. Granting the orders as sought would grant final relief at an interlocutory stage, a practice the court, following Headmaster Kiembeni Baptist Primary School, discouraged as inimical to the rule of law.
Grant of mandatory injunction not pleaded
A relief not pleaded cannot be granted on the strength of submissions alone, absent amendment.
Counsel for the Plaintiff urged removal of the Defendant in submissions but never applied to amend the application to include a mandatory injunction prayer. Under the adversarial system, parties set the agenda by their pleadings, and the court cannot adjudicate on claims not raised. The doctrine of departure confines the court to the four corners of the pleadings, following IEBC v Stephen Mutinda Mule.
Legal principles established
#- A temporary injunction is futuristic in nature; it cannot issue to restrain or undo an act that has already occurred.
- A mandatory injunction cannot be granted where it has not been pleaded; parties are bound by their pleadings.
Court orders
#- 1.The Plaintiff's/Applicant's Application dated the 16th February 2022 is dismissed.
- 2.Costs of the Application shall abide the outcome of the suit.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property L.R No. 13862/1 (I.R No. 136365); specific provision not cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Gakuru Maina v Mourice Lorukia Lomilio [2022] KEELC 492 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/492/eng@2022-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.