[2016] KEELC 171 (KLR)
The court held that the defendant's application to strike out or stay the suit, premised on the existence of another suit, raises a threshold issue that could determine whether the plaintiff's application for a temporary injunction and the suit itself should proceed. The earlier order granting priority to the...
Source-derived case information.
- Citation
- [2016] KEELC 171 (KLR)
- Parties
- Plaintiff: Bonface Katana Kilaveri; Defendant: African Marine & General Engineering Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 95 of 2016
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- The defendant's application to strike out or stay the suit will be heard first; plaintiff granted leave to respond.
- Judges
- AA Omollo
- Legal Topics
- Temporary Injunctions, Stay of Proceedings, Striking Out Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Katana Kilaveri
Plaintiff
African Marine & General Engineering Company Limited
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendant's application to strike out or stay the suit should be heard before the plaintiff's application for a temporary injunction.
- 2 Whether the court's earlier order of priority for the plaintiff's application precludes hearing the defendant's application first.
Ratio Decidendi
The court held that the defendant's application to strike out or stay the suit, premised on the existence of another suit, raises a threshold issue that could determine whether the plaintiff's application for a temporary injunction and the suit itself should proceed. The earlier order granting priority to the plaintiff's application was interpreted as relating to urgency, not as a bar to considering subsequent applications that may affect the suit's foundation. Therefore, the defendant's application should be heard first, and the plaintiff is granted leave to respond within 14 days. Directions on the plaintiff's application will be given after the ruling on the defendant's application.
Court Disposition
The defendant's application to strike out or stay the suit will be heard first; plaintiff granted leave to respond.
Orders
- The defendant's application dated 25th May 2016 shall be prosecuted first.
- The plaintiff is granted leave to file a response within 14 days of this ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
CIVIL CASE NO. 95 OF 2016
BONFACE KATANA KILAVERI………………...…...…..PLAINTIFF
-VERSUS-
AFRICAN MARINE & GENERAL ENGINEERING
COMPANY LIMITED…………………………….........DEFENDANT
RULING
1. The ruling herein is purely an administrative action. The plaintiff filed an application seeking orders of temporary injunction under Order 40 dated 6th May 2016 under certificate of urgency. I did not grant any exparte orders but gave directions that it be given date on priority and be served upon the Respondent. Upon being served with this application, the Respondent also filed a counter application dated 25th May 2016 the provisions mainly of Section 6 of the Civil Procedure Act.
2. The plaintiff’s advocate submit that their application should be heard first since this Court had made an order that it be heard on priority. The defendant thinks otherwise that their application should be heard first since they are seeking orders to strike out and or to stay the suit.
3. I have perused the two applications and the submissions filed therein. On the face of it, the Respondent seeks to strike out the suit herein or stay it because of the existence of another suit. I am of the considered view that this application should be heard first as its success or otherwise would determine whether the plaintiff’s application and suit should be heard or be stayed. The order of priority made on 9. 5.16 when the application was placed before me is to be interpreted to mean the urgency of the application but does not infer that if other issues are raised at the inter partes hearing this Court cannot review those orders appropriately.
4. Because of the nature of the orders sought by the Respondent, I do order that their application shall be prosecuted first. The plaintiff is therefore granted leave to file a response to it within 14 days of the date of this ruling. Thereafter parties to exchange skeleton submissions to be highlighted on the date given during the delivery of this ruling. I will then give directions on the way forward to the plaintiff’s application on the date the ruling on the application of 26. 5.2016 is read.
Dated and delivered at Mombasa this 25TH day of November 2016.
A. OMOLLO
JUDGE