ALICE WANGUI NYOIKE & ANOTHER V SAMMY NGUGI NG’ERA & 4 OTHERS [2007] KEHC 3328 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 460 & 105 of 2005

ALICE WANGUI NYOIKE

JOHN KAGWI………………………………………...PLAINTIFF

VERSUS

SAMMY NGUGI NG’ERA AND 4 OTHERS…DEFENDANTS

RULING

The Plaintiffs herein filed this suit on 22nd April, 2005 and on application dated 1st September, 2006 obtained an ex-parte injunction against the 1st Defendant herein restraining him from selling, alienating, transferring or developing the suit parcel.

The said application is still pending hearing with an ex-parte order in existence against the 1st Defendant.

Thereafter the 1st Defendant also filed a separate suit being H.C.C.S. No.937 of 2006 which is stayed pending the hearing and determination of this suit by an order dated 5th March, 2007.

Then the present application dated 1st April, 2007 was filed on 23rd July, 2007.

It is brought under Sections 3A and 63(e) of the Civil Procedure Act and Order XXXIX  rules 3, 4 and 9 of the Civil Procedure Rules.

It seeks substantive order for temporary injunction restraining the Plaintiff from dealing with, wasting, alienating, meddling or interfering with the 1st Defendant’s use or right of access to and/or in any other manner whatsoever using or purporting to use the suit premises.

In the meantime although the file of this suit has been reconstructed, I do not see the replying affidavit from the 1st Defendant to the application of the Plaintiffs referred hereinbefore, wherein an ex-parte order is issued against the 1st Defendant.

Although, the issue is not raised by the learned counsel for the Plaintiffs I do note that the effect of the order sought for by the 1st Defendant, if granted, shall be the two distinct orders with similar results but against each party an d the  same will be on record of this suit expecting compliance thereof.

In short, the Plaintiffs have an ex-parte order which is still in existence which restrains the 1st Defendant from doing similar actions as relate to the suit premises and if this application is heard and allowed the 1st Defendant shall have similar order but against the Plaintiffs, making the obedience of the court orders impossible.

This awkward situation cannot be encouraged by this court as the court never gives order in vain.

This application has created very strong case as regards the procedure of the variance or setting aside of the existing court order.

How  shall this court deal with this situation?

In my considered view, the only way forward is as follows namely; I direct and order that the applicant either file an application to set aside the ex-parte order granted to the Plaintiffs or amend the present application so as to include similar prayer.

In the premises, this application is stayed pending further actions by the 1st Defendant/applicant.

Costs in the cause.

K.H. RAWAL

JUDGE

5. 12. 07