Automated Summary
Key Facts
The County Government of Meru (appellant) appealed a trial court's decision to issue an injunction against them, preventing the demolition of stalls 1-65 at the Mitunguu open-air market. The trial court confirmed the injunction on October 18, 2018, and dismissed the appellant's application to set it aside on May 19, 2019. The Environment and Land Court at Meru dismissed the appeal on September 22, 2021, ruling that the appellant had not demonstrated prejudice and had an opportunity to be heard in the subsequent application. The injunction remains in place pending the main suit's determination.
Issues
- Whether the trial court violated the rules of natural justice by condemning the appellant without affording it a fair hearing, as the appellant claims it was not served with the hearing notice and thus could not present its case.
- Whether the trial court erred in law by issuing final orders of injunction over the application dated 6/9/2018 on a mention date of 18/10/2018, violating procedural rules that require matters to proceed only with party consent or by court discretion.
- Whether the trial court misinterpreted or misapplied Sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution, which relate to injunctive relief and the court's duty to preserve property pending litigation.
- Whether the trial court's ruling negated the principle that no party should be driven out of the seat of justice unheard, as the appellant argues it was denied procedural fairness.
- Whether the trial magistrate exercised her discretion injudiciously and capriciously by issuing final orders against the appellant without providing an opportunity to respond, as alleged in the appeal.
Holdings
- The appellant's claim of being denied a fair hearing was rejected, as the trial court had considered its application dated 19.11.2018 and provided a platform for its arguments. The court emphasized the right to be heard under natural justice but found no procedural violation.
- The trial court's injunctive orders (temporarily restraining demolition of stalls 1-65) were confirmed as valid and necessary to prevent the main suit's judgment from being rendered nugatory. The orders were explicitly stated to subsist until the suit's determination.
- The court dismissed the appeal with costs to the 1st respondent, finding that the trial court properly applied Article 159(2) of the Constitution and Sections 1A and 1B of the Civil Procedure Act to issue injunctive orders preserving the suit property. The appeal was deemed to lack merits as the substantive issues remain unresolved in the main suit.
Remedies
The appeal filed by the County Government of Meru was dismissed with costs awarded to the 1st respondent, Mitunguu Market Stores Self Help Group through its Chairman Benard Mugambi. The court found the appeal lacked merits and upheld the previous injunction orders.
Legal Principles
The court emphasized the right to be heard as a cardinal principle of natural justice, citing Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu [2019] eKLR. It held that the trial court did not violate this principle as the appellant had an opportunity to oppose the injunction orders via its application dated 19.11.2018. The judgment also referenced the application of Article 159(2) of the Constitution and Sections 1A and 1B of the Civil Procedure Act to uphold the issuance of injunctive orders.
Precedent Name
- Republic V Anti-Counterfeit Agency and 2 Others ex-prte Surgipharm Limited
- Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu
- Mbakia and Others V Macharia and Another
- Tetra Pak Limited V Macheo Limited
- Onyango V Attorney General
Cited Statute
- Constitution of Kenya
- Civil Procedure Act
Judge Name
Lucy N. Mbugua
Passage Text
- In the circumstances, I find that the appeal lacks merits, the same is hereby dismissed with costs to the 1st respondent.
- The right to be heard is a cardinal rule established under the principles of natural justice generally expressed as audi alteram partem. This Latin phrase literally translates 'hear the parties in turn' and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means that a party, no matter how seemingly frivolous or inconsequential, must be given a fair hearing.
- THAT orders of temporary injunction be and are hereby issued against the defendants/respondents, their workers, representative, agents, employees and anyone else working at their behest preventing them from demolishing, interfering with the applicants occupation and any other dealing adverse to the applicants ownership and peaceful occupation and possession of stall nos. 1-65 surrounding Mitunguu open air market until the determination of this suit.