[2016] KEELC 1296 (KLR)
The court declined to grant a temporary injunction or set aside the consent order because the intended 3rd Defendant, Miriam Mweu, was not yet a party to the suit. Issuing restraining orders against the Plaintiff would result in conflicting orders over the same property, which would be detrimental to the...
Source-derived case information.
- Citation
- [2016] KEELC 1296 (KLR)
- Parties
- Plaintiff: Benjamin Kyalo Mwololo; Defendant: James Matheka King’ei; Defendant: Geofrey Mui Muleelo; Defendant: Miriam Mweu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 819 of 2016
- Procedural Posture
- Environment and Land Case / Interlocutory Application for Joinder and Injunction
- Outcome
- Application for temporary injunction declined; applications for joinder and setting aside to be set down for hearing.
- Judges
- LN Gacheru
- Legal Topics
- Joinder of Parties, Consent Orders, Temporary Injunctions, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Kyalo Mwololo
Plaintiff
James Matheka King’ei
Defendant
Geofrey Mui Muleelo
Defendant
Miriam Mweu
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application for Joinder and Injunction
Legal Issues
- 1 Whether the intended 3rd Defendant, Miriam Mweu, should be joined as a party to the suit.
- 2 Whether the consent order issued on 27th October 2016 should be set aside.
- 3 Whether a temporary injunction should be granted restraining the Plaintiff pending hearing of the applications.
Ratio Decidendi
The court declined to grant a temporary injunction or set aside the consent order because the intended 3rd Defendant, Miriam Mweu, was not yet a party to the suit. Issuing restraining orders against the Plaintiff would result in conflicting orders over the same property, which would be detrimental to the administration of justice and the integrity of the court. The proper course is for the pending applications for joinder and setting aside to be heard and determined expeditiously, after which the court can make an informed decision. Until then, the consent order remains in force and no interim relief is granted to the intended 3rd Defendant.
Court Disposition
Application for temporary injunction declined; applications for joinder and setting aside to be set down for hearing.
Orders
- No temporary injunction is granted.
- The applications for joinder and setting aside are to be set down for hearing forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENT AND LAND COURT
ELC CASE NO. 819 OF 2016
BENJAMIN KYALO MWOLOLO…………….…….PLAINTIFF/APPLICANT
-VERSUS-
JAMES MATHEKA KING’EI…………..……1ST DEFENDANT/RESPONDENT
GEOFREY MUI MULEELO………….……..2ND DEFENDANT/RESPONDENT
MIRIAM MWEU ………………………………..INTENDED 4RD DEFENDANT
DIRECTIONS.
On 27th October 2016, the Court recorded Consent between the Plaintiff herein and the Defendants wherein it was consented that the Defendants jointly and severally cease any activity on the suit property and vacate the same together with the cattle that had been taken there.
Thereafter on 2nd November 2016, the Firm Law of Mutembei Chabari & Co. Advocates filed an application dated 1st November 2016, seeking for joinder of Miriam Mweu as a 3rd Defendant and stay of execution of the orders issued on 27th October 2016.
The intended 3rd Defendant filed a further Notice Motion application on 5th November 2016, seeking for restraining orders against the Plaintiff. On 29th November 2016, Mr Mwenesi for the intended 3rd Defendant sought for temporary injunction in terms of prayer no.2 for the Notice of Motion dated 15th November 2016. The same was opposed by Mr Nzavi for the Plaintiff.
I have perused the court record. There is indeed a Consent Order entered on 27th October 2016. The intended 3rd Defendant has sought for setting aside of the said orders .The intended 3rd Defendant is not yet a party to this suit. I have taken into consideration the principles of setting aside consent orders or judgement which are similar to setting aside of a contract. There is a valid court order issued by the court through consent. The court cannot issue restraining order against the Plaintiff over the same suit without having heard the parties. That would mean issuing two conflicting orders over the same suit property in the same case. That would not augur well for the institution of the court and would even embarrass the Court.
The best option herein is for the parties to ensure that the two instant applications are prosecuted expeditiously so that the court can issue an informed decision and order.
For that reason, the court declines to issue any temporary injunction . The two applications to be set down for hearing forthwith.
L GACHERU
JUDGE
2/12/2016
Before Hon.L Gacheru Judge
Court Clerk : Vincent
M/s Wamuyu holding brief for Mr Nzavi for the Plaintiff/Respondent
None attendance for the intended applicant
None attendance for the Defendants
Court:
Directions read in open Court
L.GACHERU
JUDGE
2/12/2016