Grace Gathoni Matu, Mary Muthoni Mbugua, Leah Wambui Kimani, Josphine Muthoni Wamwea & Deas Wanjiru Njoki (Officials of Multi Purpose Women Group) v Ephantus Kihara Guchu [2016] KEHC 2683 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL APPEAL NO.20 OF 2015

1. GRACE GATHONI MATU

2. MARY MUTHONI MBUGUA

3. LEAH WAMBUI KIMANI

4. JOSPHINE MUTHONI WAMWEA

5. DEAS WANJIRU NJOKI (officials of MULTI PURPOSE WOMEN GROUP.........APPELANTS

=VERSUS=

EPHANTUS KIHARA GUCHU.........................................................................................RESPONDENT

R U L I N G

1. Before me is the Application dated 15th August, 2015 filed by the Appellant. In the Application, the Appellant is seeking for the following orders:-

(a)     THAT an injunction order do issue restraining the Respondent from entering into the Appellants land, their homes or any other place associated with the Plaintiffs or their families and or tenants until the hearing and determination of this Appeal.

(b)    Costs be provided for.

2. The Application is premised on the grounds that the Respondent is using a decree in CMCC No. 110 of 2011 to harass the Applicants; that the decree that the Respondent is using is irregular because it does not conform with the Judgment and that it is the said decree that is being challenged by the Applicant in this Appeal.

3. In response, the Respondent deponed  that the Appellants are taking advantage of the typing error of the Court; that the Applicants are supposed to meet the requirements of Order 42 Rule 6 of the Civil Procedure Rules and that the Application should be dismissed with costs.

4. It is not in dispute that on 18th March, 2015, the learned Magistrate delivered a Judgment in favour of the Respondent.

5. In the said Judgment, the learned Magistrate awarded to the Respondent Kshs.300,000 as damages for breach of contract and Kshs.48,890 for the damage that was occasioned to the Respondent when his house was demolished.

6. The court also issued a permanent injunction restraining the Appellants or their agents from interfering with the Respondent's occupation and enjoyment of the suit property.

7. The Appellants house appealed against the said Judgment and also filed the current Application.

8. The Application before me is praying for injunctive orders pursuant to the provisions of Order 40 of the Civil Procedure Rules and not for a stay of execution of the orders of the Magistrate.

9. The Application is badly drafted because it does not describe the land in respect of which the Respondent should be restrained from interfering with.

10. If the injunction that the Appellants are seeking is in respect  of the suit property, then the appropriate Application should have been for stay of execution of the Judgment of the learned Magistrate.

11. An injunction pursuant to the provisions of Order 40 of the Civil Procedure Rules presupposes that there is a pending suit.

12. However, there is no pending suit before this court.  The suit which was before the learned Magistrate was heard and determined.  The Appellants can only apply for a stay of the learned Magistrate's Judgment pending the hearing of the Appeal and not for an injunction.

13. Considering that the jurisdiction of this court has been wrongly invoked by the Appellant, I find and hold that the Application dated 18th August, 2015 is unmeritorious and I dismiss it with costs.

Dated, signed and delivered in Malindi this 14th      day of  October,      2016.

O. A. Angote

Judge