Ntambara v Kityo Segawole (Miscellaneous Application No. 149 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A single Justice of the Court of Appeal dismissed an application for an interim order of injunction to preserve the status quo of land pending a temporary injunction application. The Court upheld two preliminary objections: first, the application failed to describe the suit property sufficiently to identify it, creating a risk that any order would affect unintended property; second, the underlying Miscellaneous Application No. 1082 of 2019 had been dismissed and produced no positive order capable of being stayed or injuncted, so there was no basis for an interim injunction on property that was not the subject matter of that application. The application was dismissed with costs to abide the cause.

Outcome

Application for interim injunction dismissed; interim order declined

Facts

The respondent had sued the applicant in Civil Suit No. 454 of 2004 seeking rescission of a contract and restoration of land, and obtained judgment in the applicant's absence. The applicant's appeal (Civil Appeal No. 25 of 2010) was dismissed, with the Court advising him to apply to set aside the order to proceed ex parte. He filed Miscellaneous Application No. 1082 of 2019, which was dismissed with costs, and then Civil Appeal No. 135 of 2020, which remained pending. The applicant filed a substantive application for a temporary injunction (Miscellaneous Application No. 149 of 2021) and the present application for an interim injunction to restrain the respondent from interfering with his enjoyment of the suit property and altering its status quo. The applicant alleged the respondent was creating third party interests, renting and selling portions, grading, and cutting trees on the land. The respondent objected that the property was not described and that the dismissed application had produced no positive order to stay.

Issues

1. Whether the application for an interim order of injunction was competent where the suit property was not sufficiently described.
2. Whether an interim order of injunction could issue where the underlying application dismissed yielded no positive order capable of stay or injunction.

Orders

• Respondent's preliminary objections upheld.
• Interim order of injunction declined.
• Application dismissed.
• Costs to abide the cause.

Rules and key headnotes

Legislation cited (5)

• Rules of the Court of Appeal r.1
• Rules of the Court of Appeal r.2(2)
• Rules of the Court of Appeal r.6(2)(b)
• Rules of the Court of Appeal r.43
• Civil Procedure Rules O.7 r.3

Cases cited (3)

• Alcon International Ltd v New Vision and Another (Civil Application No. 4 of 2010)
• Republic V Kenya Revenue Authority, Judicial Review No.1 of 2018 (unreported)
• Cooperative Bank Limited V Banking Insurance & Finance Union Kenya (Nairobi App. No.133 of 2017)

The original judgment as reported. Read the original PDF before relying on any passage.