Mutei v Wanjiru (Environment & Land Case E014 of 2023) [2024] KEELC 1090 (KLR)

determination. That the Defendant herein is a police oficer and has unlawfully trespassed into the Plaintifi’s land and is constructing a permanent house. That the Defendant is using her position to intimidate, harass and arrest anyone attempting to stop her from construction hence the Application. 3. The Application is supported by the Afidavit of even date of John Wambua Mutei, the Plaintifi. Reiterating the above grounds, the Plaintifi annexed copies of the list of petitioners in the Petition, photos of the house and Plaintifi’s charge sheet in Thika CMCC Criminal case No 1457 of 2020 marked as JWM-1, 2 & 3 respectively. 4. The Application is not opposed despite service. See Return of Service sworn by J. Maina, Process Server on 7/8/2023. 5. The Plaintifi, acting in person, argued the Application orally in Court on 23/10/2023. 6. Urging the Court to grant injunctive reliefs, he stated that the Defendant is destroying his crops and interfering with his boundary and at the same time threatening him. That there is a pending case touching on the suit land ELC Petition 11 of 2018 though the Defendant is not a party to the case. The Plaintifi also sought compensation for damages caused by the Defendant. 7. The sole issue for determination is whether the Application is merited. 8. Whereas the Application does not disclose the rules it is premised on, and cognizant that it is not fatal to the merits of the case, it is notable that prayers therein are inelegantly drafted. 9. The Applicant in Prayer No 2 urges the Court to grant temporary injunction pending interpartes hearing of the Application. This prayer is now overtaken by events and cannot issue in the circumstances. 10. Further Prayer No 3 seeks a permanent injunction pending the determination of the Application. A permanent injunction is final in nature issued upon determination of the parties’ rights and therefore cannot be granted at the preliminary stage as in this case unless special conditions are proven. The circumstances under which the Court would grant a mandatory (permanent) injunction was well stated out by the Court of Appeal in the case of Malier Unissa Karim v Edward Oluoch Odumbe (2015) eKLR that; “ The test for granting a Mandatory Injunction is difierent from that enunciated in the “Giella v Cassman Brown case which is the locus classicus case of Prohibitory Injunctions. The threshold in Mandatory is higher than the case of Prohibitory Injunction and the Court of Appeal in the case of “Kenya Breweries Ltd v Washington Okeyo (2002) EA 109” had the occasion to discuss and consider the principles that govern the grant of a Mandatory Injunction was correctly stated in Vol. 24 Halsbury Laws of England 4th Edition Paragraph 948 which states as follows:“A Mandatory Injunction can be granted on an interlocutory Application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However, it the case is clear and one which the Court thinks ought to be decided at once or if the act done is simple and summary one which can be easily remedied, or if the Defendant attempts to steal a match on the Plaintifi, a Mandatory Injunction will be granted on an Interlocutory Application.” 11. From the record before Court, I am not persuaded that the Applicant has established special circumstances for granting Permanent injunction at the interlocutory stage. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1090/eng@2024-02-29 2

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12. Last but not least, the Applicant in Prayer No 4 is seeking consolidation of this suit with Thika ELC Petition 11 of 2018. The Court’s jurisdiction to consolidate suits is anchored in Order 11 Rule 3 of the Civil Procedure Rules. The Supreme Court in the appeal by Law Society of Kenya v Center for Human Rights & Democracy & 12 others [2014] eKLR, held: “ The essence of consolidation is to facilitate the eficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never intended to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party who opposes it.” 13. In the case of Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2000] eKLR, the Court held: “ The situations in which consolidation can be ordered include where there are two or more suits for matters pending in the same Court where: a. Some common questions of law or fact arises in both or all of them. b. The rights or reliefs claimed in them are in respect of the same transactions; c. For some other reasons, it is desirable to make an order for consolidating them.” 14. The Plaintifi averred that he is one of the Petitioners in the Petition and by his own admission added that the Defendant is not a party in the Petition. He has not established whether common questions of law or fact arise in this suit and the Petition. Neither has he demonstrated that the reliefs he is seeking herein are in respect of the same transactions as in the Petition. Lastly the Applicant has not established the nexus between this suit and the Petition which by their respective unique nature, accord difierent outcomes. 15. In the end, the Application is not merited. 16. It is struck out with no orders as to costs. DATED, SIGNED & DELIVERED AT THIKA VIA MICROSOFT TEAMS THIS 29TH DAY OF FEBRUARY, 2024. J G KEMEI JUDGE Delivered online in the presence of; Plaintifi – present in person Defendant - Absent Court Assistants – Phyllis/Oliver https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1090/eng@2024-02-29 3

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