[2014] KEELC 455 (KLR)
The court declined to grant the interlocutory prayers sought in the Notice of Motion because they were identical to the final reliefs sought in the plaint. Granting such orders at this stage would effectively determine the entire suit without affording the defendants an opportunity to be heard, which would be...
Source-derived case information.
- Citation
- [2014] KEELC 455 (KLR)
- Parties
- Plaintiff: Bihindi Mwijaka Mwinyifaki; Plaintiff: Salama Mwijaka Mwinyifaka; Defendant: Ima Matano Mzee; Defendant: Julius Mathembe; Defendant: Hassan Athman; Defendant: Bimvua Abdalla
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 82 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application
- Outcome
- Interlocutory application declined; status quo to be maintained.
- Judges
- SN Mukunya
- Legal Topics
- Status Quo Orders, Interlocutory Injunctions, Preservation of Subject Matter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bihindi Mwijaka Mwinyifaki
Plaintiff
Salama Mwijaka Mwinyifaka
Plaintiff
Ima Matano Mzee
Defendant
Julius Mathembe
Defendant
Hassan Athman
Defendant
Bimvua Abdalla
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether granting the prayers in the Notice of Motion would amount to determining the suit without hearing the defendants.
- 2 Whether the status quo should be maintained to preserve the subject matter of the suit.
Ratio Decidendi
The court declined to grant the interlocutory prayers sought in the Notice of Motion because they were identical to the final reliefs sought in the plaint. Granting such orders at this stage would effectively determine the entire suit without affording the defendants an opportunity to be heard, which would be prejudicial and contrary to the principles of natural justice. To avoid prejudice and ensure a fair trial, the court ordered that the status quo be maintained to preserve the subject matter until the suit is heard and determined on its merits.
Court Disposition
Interlocutory application declined; status quo to be maintained.
Orders
- Status quo to be maintained pending hearing and determination of the suit.
- Parties to fix the case for hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ENVIRONMENT AND LAND CASE NO. 82 OF 2013
1, BIHINDI MWIJAKA MWINYIFAKI
2. SALAMA MWIJAKA MWINYIFAKA
(administrators of the estate of Mwanahawa Mwinyijaka Mwinyifaki (Deceased) .........................PLAINTIFFS
- V E R S U S -
1. IMA MATANO MZEE
2. JULIUS MATHEMBE
3. HASSAN ATHMAN
4. BIMVUA ABDALLA .............................................................. DEFENDANTS
RULING
[1] The prayers in the plaint dated 2nd of May, 2013 and the prayers in the Notice of Motion dated 2nd May, 2013 are the same. Determining the application herein will mean l will have determined the suit without having heard the defendants who have appeared and have filed their defence. This will obviously prejudice the respondent/ defendants and will lead to a miscarriage of justice. Parties to this suit should fix this case down for hearing so that the court can determine the issues herein. To preserve the subject matter of the suit, status quo should be maintained.
It is so ordered
Dated and delivered in open court at Mombasa this 14th day of March, 2014.
S.N. MUKUNYA
JUDGE
14. 3.2014
In the presence of;
Mr. Mwarandu Advocate for the plaintiff.
Mr.Mutiso advocate for Mr. Khayatta for 3rd and 4th defendants/respondents.