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ELCDismissedEnvironment and Land Case Civil Suit 73 of 2021· [2022] KEELC 14834 (KLR)

Kiprono v Chebor & another

Environment and Land Court
17 November 2022
LOL. A. Omollo
3,235 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed landowners' attempt to lift an injunction because their application asked for the wrong relief, showing precision in court papers matters.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (L. A. Omollo, J) determined the defendants' notice of motion dated April 21, 2022, seeking to vary or set aside the temporary injunction issued on January 17, 2022 restraining them from disposing of, alienating, transferring or interfering with the plaintiff's possession and use of land parcel Kakamor/Kipropita/221, and further seeking to restrain the plaintiff from trespassing on the land. The suit itself, filed by plaint dated September 6, 2021, claims a declaration that the suit property is matrimonial property held 50% in trust for the plaintiff, an equal share, nullity of the December 22, 2016 sale between the defendants, and permanent injunctions. The defendants argued the plaintiff had never occupied the land, that the second defendant was in actual possession, that the plaintiff had given false evidence misleading the court, and that compliance with the injunction was impossible. The plaintiff opposed, contending that difficulty in compliance is not a ground for setting aside, that the application was an appeal disguised as review, and that the prayers were temporary in nature with the substratum already dealt with ex parte on April 22, 2022. The court agreed, holding that the prayers sought orders only pending hearing and determination of the application itself, leaving nothing for inter partes determination, and that the applicants had failed to seek appropriate relief or leave to amend. Applying Issa Ahmed v Mohamed Al-Sawae and Protus Oduor Malala v Wanyangu Livingstone Onjala, the court held the prayers were incapable of being granted and would amount to orders in vain. The application was dismissed with no orders as to costs.

Key legal issues

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01

Competence of the notice of motion dated April 21, 2022

Holding

The application was incompetent because the prayers were temporary orders pending inter partes hearing of the same application; once the court dealt with the substratum ex parte on April 22, 2022, nothing remained for determination

Reasoning

The applicants sought variation or setting aside of the January 17, 2022 injunction only pending hearing and determination of the application itself, not of the suit. The court found the substratum had been dealt with ex parte, leaving nothing inter partes. The applicants did not seek leave to amend the error, and the court could not grant relief not sought.

p. 6
02

Purpose of pleadings and defining relief

Holding

Pleadings define the issues and relief; a court cannot infer a case from stray sentences or grant unpleaded relief

Reasoning

Relying on Issa Ahmed & 15 others v Mohamed Al-Sawae, the court held that pleadings ensure issues are clearly defined, prevent expansion or shifting of grounds, and give each side notice of the other's case. Granting relief not sought would cause a miscarriage of justice.

p. 6

Legal principles established

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  • A court cannot grant relief not sought in the pleadings or application; orders incapable of being granted will not be granted as that would be granting orders in vain

Court orders

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  1. 1.The defendants/applicants' notice of motion application dated April 21, 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 7
  • Civil Procedure Actsections 1A, 1B, 3A
  • Matrimonial Property Act
  • Land Registration Act
  • Constitution of Kenya

Cases cited (9)

  • Republic vs Principal Secretary, Ministry of Defence, Ex parte George Kariuki Waithaka
    Misc Application No 276 of 2015

    Difficulty to comply with a court order is a valid ground for seeking setting aside or review

  • B vs Attorney General
    [2004] 1 KLR 431

    Orders used to waste and damage land; risk of irreparable damage rendering outcome nugatory

  • James June Muchemi and Partners Limited vs Barclays Bank of Kenya & another
    (Nairobi HCCC No 399 of 2011) [2012] eKLR

    Setting aside of court orders is at the discretion of the court

  • Prashant Vats vs University of New Delhi & another
    WP (C) No 6254/2006

    Each case turns on its own facts

  • Leah Nyambura Mbutu vs Barclays Bank of Kenya Ltd
    [2012] eKLR

    Court can set aside injunctive orders where misled on material facts or on post-order conduct

  • National Bank of Kenya Limited vs Ndungu Njau
    [1997] eKLR

    Support for plaintiff's arguments on setting aside

  • Perpetua Mponjiwa vs Elius Okumu Otieno and 3 others
    [2017] eKLR

    Support for plaintiff's arguments

  • Issa Ahmed & 15 others vs Mohamed Al-Sawae
    [2021] eKLR

    Object and purpose of pleadings; court cannot grant unpleaded relief

  • Protus Oduor Malala vs Wanyangu Livingstone Onjala
    [2021] eKLR

    Incompetent motion where there is nothing to be stayed; court cannot grant orders in vain

Jurisdiction invoked
Order 40 rule 7 of the Civil Procedure Rules and sections 1A, 1B, 3A of the Civil Procedure Act

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, "Kiprono v Chebor & another", Case Analysis (2022). Environment and Land Case Civil Suit 73 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14834/eng@2022-11-17

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