Professional Documents
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VERSUS
-o-KYEERI
RURAL CO-OPERATIVE SOCIETY LTD 1Sf RESPONDENT/DEFENDANT
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RULING
S.E.MUGASHA, J
Mbono Farms.
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notice.
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I ~~.!...v:~i~.iS..~h~t. m~~.~ th~ ap?I.~c?nt to come t~ this court seek for- -'- -~'"
V 0 followingorders namely:
,. Thishonourable court be pleased to issue temporary orders of
injunction pending the hearing and final disposal of the land
suit filed into this honourable court.
2. Costs of this application.
3. Any other relief the court deems fit to grant.
--=-The application is supported by the affidavit of Elia Kimaro, the
Principal Officer of the applicant/plaintiff. The applicant was
",:,",~;,,;~,!*";',,:Jepresented. by..Mr. Kibatalo. .Iearned Counsel.and the respondent5-. >"- -.,,;,','
- ' , '. "'On 25th March, 2010, the applicant filed a supplementary affidavit
deponed by Elia Kimaro. The affidavit was filed without requisite
, leave of the court. As such, the applicant's counsel was not
permitted to refer to the supplementary affidavit which was filed in
contravention of Order VIIIRule 13 provides:
No pleading subsequent to the written statement of a defendant other
than by way of defence to a set-off or counterclaim shall be presented
except by the leave of the court and upon such terms as the court thinks
fit, but the court may at a pre-trial conference require a written statement
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or additional written statement from any of the parties and fix a time for
presenting the same:
A supplementary affidavit is a pleading subsequent to the
"'''''''~;>i'''''~<:tDunterDffidavitwhich can-only be filed upon asking and obtaining'" ",-."".
requisite leave of the court. In the premises, supplementary affidavit
of Mr. Elia Kimaro found its way to court through the back door
which is irregular.
Notwithstanding the court's refusal to permit the applic,ant's counsel
during the hearing of this application to refer to the supplementary
affidavit; the affidavit is stillin the case file though not properly so for
lack of requisite leave. As such, I expunge the supplementary
affidavit same from the record of this application.
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I do agree with Mr. Maruma that, his clients never concluded a deal
with Mr. Kimaro but Fiona, there is no proof that Mr. Kimaro is not an
officer of the applicant/plaintiff company. In the premises, this
application is competent and properly before the court. As such the
objection is overruled.
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On the other hand, Mr. Maruma for the respondents submitted that,
the applicant is in breach of the lease agreement for not paying rent
when due; and failing to develop coffee as agreed in the lease
agreement. Besides, it is the contention of Mr. Maruma; that, the loss
or suffering alleged by the applicant is quantifiable and
compensable in monetary terms which renders the grant of the
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,,:.-temp0rary- -injunction- unnecessary and.- on the -other hand- ""
necessitates termination of the occupancy of the applicant in the
lease premises.
liltis generally agreed that there are three conditions which must be
satisfied before such an injunction can be issued:-
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(ii) A probability that the plaintiff will be entitled to the relief
0 prayed;
'c" "~,,,\;'~""',"~"~ (Hi) .,-" That the Court' s interference is necessary to protect or on" ""-'-""
It is not disputed that, the lease agreement which is the basis of this
application and the main suit is a serious question to be tried or a
triable issue. That is when issues of pertaining to the alleged breach
of the lease agreement will be determined after the court receives
requisite evidence. However, it is not definite and probable that, the
applicant/plaintiff willbe entitled to reliefs claimed.
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'" ,In paragraph 14.0 of the applicant's affidavit, the applicant inter alia
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On the other hand, Mr. Maruma argues that, whatever loss to be
,suffered by the applicant is quantifiable and compensable in
monetary terms which necessitate the eviction of the applicant
rather than have the applicant's continued occupation on the suit
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convenience is in favour of the applicant?
Besides, Mr. Kibatalah did not impress the court on how does he
, weigh the applicant's need of a temporary order of injunction as
against the corresponding need of protection of the
respondents/ defendan ts.
.~c"'~;;'~"':in-
view of the aforesaid, for-the -time being, I,do not see the essence- ~ - -,,'
of court intervention by way of granting temporary orders of
injunction to restrain the respondents from evicting the applicant.
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JUDGE
~ .,~;"..;,! (.~~. -.'" 7nLMAY, 2010 "'. "'''-'''"" . ."
S.E.MUGASHA
JUDGE
7THMAY, 2010
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