Chaka Mtwana Jojomera & another v Edward Shida Kauli
The bottom line
#A Kwale court refused to cancel a land injunction but made it fairer, restraining both sides equally after the landowners hid key facts about who lives on the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the injunction orders issued on August 1, 2022 should be discharged, varied or set aside under Order 40 rule 7
The orders were discharged and varied into mutual status quo restraints binding both parties, because the plaintiffs failed to disclose material facts about the extent of occupation and the orders affected persons not party to the suit
The court accepted that setting aside injunctions is discretionary and must be exercised judicially. Although the applicant's failure to respond amounted to indolence, the plaintiffs' non-disclosure of the extent of occupation (over 30 families, graves, structures) was material, and the orders affected third parties who had not been heard. Preservation of the suit property and substantive justice favoured mutual restraints pending viva voce evidence on occupation and ownership.
Whether the applicant's failure to respond to the injunction application was excusable
It was not excusable; it was indolence, and Order 40 rule 7 does not exist to aid such a party
The applicant claimed he could not afford an advocate, but having been served with pleadings he showed no interest until after service of the injunctive orders. The court applied the equitable maxim that the vigilant are aided, not the indolent, and adopted Munyao J's dictum that exceptional circumstances are required before recourse to Order 40 rule 7.
Whether the alleged non-disclosure of the earlier suit (Kwale Land Case No 71 of 2018) justified discharge
The issue was dispensed with because the pleadings were not availed; it should be dealt with at pre-trial directions, possibly by consolidation, stay or joinder
The applicant alleged the plaintiffs failed to disclose the earlier suit, but did not avail the pleadings to the court. The court held the best approach was to address the issue during pre-trial directions and consider consolidation, stay or joinder of other parties if found necessary.
Legal principles established
#- Order 40 rule 7 does not aid a party who was served with an injunction application but failed by design or neglect to defend it; exceptional circumstances are required
- A court has unfettered discretion to discharge, vary or set aside an injunction where the ends of justice so demand
- An applicant for an ex parte injunction must make the fullest possible disclosure of all material facts, including the extent of occupation of the suit property
Court orders
#- 1.Pending further orders, both defendant and plaintiffs, their agents, employees, representatives, servants and persons acting on their behalf restrained from selling, transferring or undertaking any further construction of a permanent nature on the parcel known as Samburu/Kigombero Area Matopeni within Kwale County, to maintain the status quo and preserve the suit property
- 2.No orders as to costs
- Jurisdiction invoked
- Order 40 rule 7 of the Civil Procedure Rules, 2010 and section 3A of the Civil Procedure Act (inherent powers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chaka Mtwana Jojomera & another v Edward Shida Kauli", Case Analysis (2023). Land Case E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19308/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.