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RULING
The Plaintiff herein issued a Writ of Summons against the Defendants asking for a declaration that he is the equitable and beneficial owner of the five plots of land situate, lying and being at Weija the subject matter of the instant suit.
An order for perpetual injunction was one of the reliefs sought for and when Plaintiff’s counsel was set to move an application brought for interlocutory injunction, a preliminary objection was raised by counsel for the Defendants on a point of law.
He submitted that his preliminary objection is grounded on Order 25 Rule 1 Subrule (2) of the High Court Civil Procedure Rules (2004) C.I 47.
This rule provided that; “A party to a cause or matter may apply for the grant of an injunction before or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party’s Writ, counterclaim or third party notice”
Counsel for the Respondent further submitted that Subrule 3 states “The Applicant shall attach to the motion paper and the supporting affidavit a statement of case setting out full arguments including all relevant legal authorities in support of the application.
That after the Plaintiff came out with the motion paper for the application for Interlocutory Injunction, it is another person who is not a party to the suit who swore to the affidavit in support of the application contrary to Order 25 Rule 1 Subrule (3) of C.I 47.
That the person who swore to the affidavit attached to the motion paper did not give any indication that he is the Lawful Attorney of the Plaintiff.
Counsel further submitted that all the exhibits attached to the application bears the name of the Applicant, the deponent should therefore tell the Court in which capacity is he deposing to the affidavit.
Besides, the exhibit did not satisfy Order 20 Rule 14 of C.I 47 because the exhibits are emerging from somewhere and there should have been certificate of identification.
Counsel for the Plaintiff in responding to the preliminary objection raised argued that the objection raised by counsel is misconceived and a huge misapprehension of the word “party” as used in Order 25 of C.I 47.
That the word “party” used in Order 25 that he could initiate an injunction application does not mean that it is the party qua party who must necessarily depose to that affidavit.
That affidavits are governed by the provisions of Order 20 and it simply says that any person with information about the issue may depose to those fact