Introduction
1. On 22nd January, 2025 this court determined that there were irregularities in the process that culminated in the eviction of the applicant (now respondent) from the suit property. Arising from that determination, I ordered and directed the respondent in that application (now applicant) through its leaders and survey committee, to within seven (7) days from the date of delivery of the ruling to put the applicant in that application (now respondent), in possession of the parcel of land allocated by the respondent (now applicant) to his deceased father failing which an order restoring the applicant (now respondent) to the portion of land he was occupying before he was evicted from the suit property would automatically issue pending hearing and determination of the applicant’s appeal pending before this court.
2. From the averments contained in the instant application, notice of motion dated 3rd February, 2025 and the response thereto, it appears that the order of the court was not complied with within the time ordered by the court and at all.
3. In its further affidavit sworn on 7th March, 2025 the applicant’s chairperson, Jeremiah K. Kipkurere, acknowledges that the order of the court was not complied with within the time ordered by the court and at all and explains that they tried all they could to ensure compliance with the order of the court but were frustrated by the respondent who allegedly declined to accompany the applicant’s committee for a site visit meant to show the respondent his father’s parcel of land as ordered by the court.
4. In his response to the application, the respondent acknowledges that he attended the meeting convened by the applicant to deliberate on the issue of compliance with the court order but contends that he was not shown the portion meant for his father within Baringo/Kimalel/2. The respondent expresses concern that all the correspondences to him and the court refer to parcel number Baringo/Kimalel/950 instead of Baringo/Kimalel/2.
5. In response to the respondent’s contention that he was shown a different parcel of land from the one ordered by the court, the applicant through the further affidavit of its chairperson mentioned herein above, has explained that parcel number Baringo/Kimalel /950 is a subdivision of parcel No. Baringo/Kimalel/2.
SUBMISSIONS.
6. The applicant did not file submissions and if it did, the submissions were not placed in the court file.
7. In the respondent’s submissions filed on 27th March, 2025 the respondent gives a background of the case and framed the issues for the court’s determination as follows;
i) Whether this appellate court has jurisdiction to entertain such an application;
ii) If yes, whether the applicant has satisfied the test for being granted injunctive reliefs;
iii) Whether the respondent should be summoned to show cause why he should not be committed to civil jail;
iv) Whether this court can deny the respondent and his advocate and or recognized agents’ audience before the court.
8. The respondent challenges the jurisdiction of this court as an appellant court in regard to the prayers sought in the instant application. He submits that the power of the court to issue an order of injunction is limited to the court with original jurisdiction and not in its appellate jurisdiction. However, the appellate court has power under Order 42 Rule 6 of the Civil Procedure Rules, to issue orders resembling those of a temporary injunction on terms as it thinks just, which provisions, the applicant has not invoked in the instant application. To buttress their point, they relied on the case of Western College of Arts and Applied Sciences v EP Oranga & Others (1976) KECA 15 (KLR), Civil Application No. 4 of 1976.
9. The applicant submits that even if this court was clothed with jurisdiction, the applicant had not met the threshold or test required for granting of an injunction as it had failed to establish a prima facie case with a probability of success. The applicant had failed to demonstrate which of its rights were violated. He submits that the applicant was required within 7 days from the date of delivery of the ruling dated 22nd January 2025, to put the respondent in possession of his father’s land failing which the respondent was to be restored to the land he was occupying prior to his eviction. The applicant failed to comply with the court order prompting the respondent to go back to the land he was occupying before eviction. Further, there is no case pending before the trial court to warrant any invitation to determine probability of success upon trial.
10. According to the respondent, the applicant rushed to court to seek injunctive reliefs with an idea of concealing their mischief of disobeying the court order.
11. On whether the applicant has demonstrated the irreparable harm it is likely to suffer if the order sought is not granted, the applicant submits that no harm has been demonstrated. On the contrary, it’s the respondent who stands to suffer harm as the court will essentially be stopping the same orders it issued earlier. He made reference to the case of Joseph Ntombura v Godfrey Simiyu & 4 others civil Appeal No. 361 of 2017 (2018) eklr.
12. On balance of convenience, he submits that balance of convenience tilts in his favour as the application seeks to evade compliance with the orders of this court and the inconvenience caused to him is greater than that of the applicant as he currently does not have a place to live due to the illegal eviction.
13. On whether the respondent should be summoned to show cause why he should not be committed to civil jail, he submits that the prayer sought is untenable as the applicants are in breach of the court order after they acted contrary to the terms of the order. He relied on the case of Chepkwony & Another v Chepkwony, (Environment & Land Case E004 OF 2023) which cited the case of North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi (2016) eklr on the essential elements an applicant ought to prove on contempt.
14. On the last issue, he submits that the prayer sought by the applicant that the respondent and his advocate be denied audience is untenable as fair and public hearing is guaranteed under Article 50 the Constitution. He urges the court to dismiss the application with costs as it lacks merit.
Analysis and determination
15. I have carefully read and considered the application, affidavit and the law. Whereas the Issues raised in the application could be a good ground(s) for setting aside the order of 22nd January 2025, they cannot form a basis for granting orders that would amount to setting aside the orders made on 22nd January, 2025 without an application for setting aside those orders or a prayer asking the court to do so.
16. In view of the foregoing, I find and hold that the orders sought are incapable of being issued.
17. To accord parties time to either comply with the orders of 22nd January 2025, or move the court for setting aside those orders if need be, in exercise of the power vested in this court under section 3A of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, I extent the time within which the applicant ought to comply with the order of 22nd January, 2025 by a further 30 days from the date of delivery of this ruling.
18. The parties to this dispute and their advocates are reminded of the duty imposed on them by Section 1A and 1B of the Civil Procedure Act.
19. Without going to the merits/demerits of some of the issues raised in this application, particularly the issue of whether or not the parcel of land the applicants’ have proposed or intend to show the respondent, it is the considered view of this court that all the applicant is required to do is to ensure that the parcel to be shown to the respondent is a subdivision of the large parcel of land known as Baringo/Kimalel/2 and not necessarily take the respondent back to the parcel he was occupying before he was evicted.
20. The upshot of the foregoing is that the application dated 3rd February, 2025 is found to be lacking in merits and is dismissed. Each party to bear their own costs.
21.
22. Orders accordingly.
Dated, signed and delivered at Kabarnet this 28th day of May, 2025.
Ruling delivered virtually in the absence of all parties;-
N/A for the Applicant
N/A for the Respondent
Court Assistant: Lilian