[2013] KEHC 1621 (KLR)
The court found that the prayers sought in the application were substantially similar to those in the main suit and that granting them at the interlocutory stage would effectively determine the suit without a full hearing. The court noted that the dispute involved family members residing on the suit properties and...
Source-derived case information.
- Citation
- [2013] KEHC 1621 (KLR)
- Parties
- Applicant: Ali Bakari Boi & 5 Others; Respondent: Shee Halfan Boi & 12 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 102 of 2012
- Procedural Posture
- Civil Case / Ruling on Application for Permanent Injunction and Vacant Possession
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Permanent Injunction, Vacant Possession, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ali Bakari Boi & 5 Others
Applicant
Shee Halfan Boi & 12 Others
Respondent
Procedural Posture
Civil Case / Ruling on Application for Permanent Injunction and Vacant Possession
Legal Issues
- 1 Whether the applicants are entitled to a permanent injunction restraining the respondents from entering or remaining on the suit properties.
- 2 Whether the applicants are entitled to an order for vacant possession and eviction of the respondents from the suit properties.
- 3 Whether the application raises issues that can be determined at the interlocutory stage or require a full hearing on merits.
Ratio Decidendi
The court found that the prayers sought in the application were substantially similar to those in the main suit and that granting them at the interlocutory stage would effectively determine the suit without a full hearing. The court noted that the dispute involved family members residing on the suit properties and that the issues raised required a substantive hearing on merits. The applicants failed to demonstrate urgency or a clear case for the grant of a permanent injunction or vacant possession at this stage. Consequently, the application was dismissed, and the matter was directed to proceed to hearing on merits.
Court Disposition
application dismissed
Orders
- The application for permanent injunction and vacant possession is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT
AT MOMBASA
CIVIL CASE NO. 102 OF 2012
ALI BAKARI BOI & 5 OTHERS..................PLAINTIFFS/APPLICANTS
- V E R S U S -
SHEE HALFAN BOI & 12 OTHERS .....DEFENDANTS/RESPONDENTS
RULING
[1] The applicants pray for a permanent injunction against the respondents from entering into and/or remaining upon the suit properties Kwale/Msambweni "A" 2156 and Kwale/Msambweni "A" 2158. They also pray for an order that the respondents be ordered to give vacant possession of the said lands to the applicants failing which they be evicted by Court Bailiff.
The application is supported by the affidavit of Ali Bakali Boi sworn on 28th May, 2012.
The affidavit merely states that he and 2nd plaintiff are the registered owners and that the respondents have invaded their land.
[2] The respondents filed a replying affidavit through Shee Halfan Boi who swore an affidavit on 25th July 2012 which gives a history of his family tree that includes the applicants. He alleges that there was a case in the now defunct land dispute tribunal at Kwale. He alleges the case was in his favour. He disputes that he has encroached the applicants land.
[3] The prayers in this application are similar to those in the plaint. This court cannot determine the application without determining the suit. This would be undesirable at this stage. The issues at hand should be canvassed by the parties at a full hearing. There is really nothing urgent on this application since the subject matter in the application has been the same as that filed before the District Land Tribunal by the parties herein long before filing this suit.
[4] From the pleadings the court notes that the parties are family members who now reside on the suit properties.
The court is not convinced that the applicant has made out a case for the orders they seek in their application.
This matter should be fixed for hearing on merits. I dismiss this application and order that each party bear their own costs.
Dated and delivered in open Court at Mombasa this 18th day of October, 2013.
S.N. MUKUNYA
JUDGE
18. 10. 2013
In the presence of:
Ogembe Advocate for Mwinyi Advocate for the plaintiffs
Non appearance for the the defendants - served with Judgment Notice.