[2008] KECA 30 (KLR)
The Court of Appeal determined that, given the urgency of the matter and the late service of the respondent's replying affidavit, it was just to adjourn the hearing of the application to allow the applicant to take instructions and respond appropriately. To prevent prejudice and preserve the subject matter of the...
Source-derived case information.
- Citation
- [2008] KECA 30 (KLR)
- Parties
- Applicant: Anne Mumbi Hinga; Respondent: Victoria Njoki Gathara
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 285 of 2008
- Procedural Posture
- Civil Application / Interlocutory Application for Injunction and Stay Pending Appeal
- Outcome
- Application adjourned; status quo maintained; leave granted to file further affidavit; costs in the application.
- Judges
- AM Githinji, CA Otieno
- Legal Topics
- Injunctions, Stay of Proceedings, Status Quo Orders, Affidavit Filing, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Mumbi Hinga
Applicant
Victoria Njoki Gathara
Respondent
Procedural Posture
Civil Application / Interlocutory Application for Injunction and Stay Pending Appeal
Legal Issues
- 1 Whether the status quo should be maintained pending the hearing of the application for injunction and stay.
- 2 Whether the applicant should be granted leave to file a further affidavit in response to the replying affidavit just served.
Ratio Decidendi
The Court of Appeal determined that, given the urgency of the matter and the late service of the respondent's replying affidavit, it was just to adjourn the hearing of the application to allow the applicant to take instructions and respond appropriately. To prevent prejudice and preserve the subject matter of the dispute, the court ordered that the status quo regarding the disputed plot be maintained until the next hearing date. The court further granted leave to the applicant to file and serve a further affidavit within seven days. The registry was directed to prioritize the hearing of the adjourned application. Costs were reserved in the application.
Court Disposition
Application adjourned; status quo maintained; leave granted to file further affidavit; costs in the application.
Orders
- The application is taken out from the hearing list to enable the applicant to take instructions on the replying affidavit.
- Status quo as exists today in respect of the disputed plot to be maintained until the next hearing date.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLI NO. 285 OF 2008 (UR 187/2008)
ANNE MUMBI HINGA …….……………………………………. APPLICANT
AND
VICTORIA NJOKI GATHARA ……..….……….……………. RESPONDENT
(Application for an injunction and stay of further proceedings in the superior court pending hearing and determination of the intended appeal from the order of the High Court at Milimani Commercial Court, Nairobi (Kimaru J) dated 24th September, 2008
in
H.C. MISC. APPLI. NO. 617 OF 2000)
*******************************
ORDER OF THE COURT
The Notice of Motion dated 28th October, 2008 was certified as urgent, mainly because there is an application relating to the same dispute scheduled to be heard in the superior court. Mr. Kibatia, learned counsel for the respondent confirms to us that the application scheduled for hearing in the superior court on 12th November, 2008 has been overtaken by events and he will not prosecute it.
The respondent has filed a replying affidavit this morning which he has served on Mr. Nyangau, learned counsel for the applicant in court.
Mr. Nyangau intimates that he would have liked to take instructions on the affidavit but that the matter is urgent as the respondent intends to embark on a construction in the disputed plot.
The counsel have agreed that status quo in respect of the disputed plot can be maintained until the next hearing date.
In the circumstances, the application is taken out from the hearing list to enable Mr. Nyangau to take instructions on the replying affidavit. It is ordered that status quo as exists today in respect of the disputed plot be maintained until the next hearing date. The registry to give a hearing date of the adjourned application on priority basis. Costs in the application.
FURTHER ORDER:
On application of Mr. Nyangau, leave to applicant to file and serve a further affidavit within 7 days of the date hereof.
Dated at Nairobi this 5th day of November, 2008.
E. O. O’KUBASU
………………………………
JUDGE OF APPEAL
E. M. GITHINJI
………………………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
………………………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR