Mosbey & 6 others v Busienei & 2 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory injunction could issue where the applicants have filed no counter-claim in response to the originating summons
The application for injunction fails because there is no suit upon which the injunction can be based.
The court applied the settled principle that an injunction must be anchored on a suit. The respondents filed a replying affidavit to the adverse possession originating summons but raised no counter-claim. Without a suit, the application for injunction had no foundation and could not be sustained.
Whether the applicants came to court with clean hands
The 1st applicant's contradictory affidavits - first admitting sale of portions to the respondents, then denying it - demonstrated bad faith and unclean hands.
The 1st applicant initially admitted in a replying affidavit that he had sold portions to the respondents and was willing to give them title. He later swore a second affidavit denying any sale. The court found this direct contradiction amounted to the height of dishonesty, disqualifying the applicants from equitable relief.
Whether the application was an abuse of the process of court
The application was found to be an abuse of process, without merit and brought in bad faith, and was dismissed with costs.
Given the absence of a supporting suit, the admitted sales, and the contradictory affidavits, the court concluded the injunction application was an abuse of process. Granting the injunction would have amounted to constructive eviction of the respondents who occupy and have built on their portions.
Legal principles established
#- An injunction must be based on a suit; an interlocutory injunction cannot be granted where there is no suit (e.g. no counter-claim) upon which it can rest.
- A party who swears affidavits in direct contradiction of each other comes to court with unclean hands and their application may be treated as an abuse of process.
Court orders
#- 1.The respondents' notice of motion dated March 13, 2023 seeking injunctive orders is dismissed
- 2.Costs of the application awarded to the applicants/respondents
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land matters (Limitation of Actions Act Cap 22 adverse possession suit)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mosbey & 6 others v Busienei & 2 others", Case Analysis (2023). Enviromental and Land Originating Summons E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18560/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.