[2017] KEELC 3854 (KLR)
The court did not make a final determination on the merits of the application for injunction or the preliminary objection. Instead, by consent of the parties, it ordered that the status quo be maintained, meaning no party shall undertake further development on the suit premises pending the hearing and determination...
Source-derived case information.
- Citation
- [2017] KEELC 3854 (KLR)
- Parties
- Plaintiff: Chandoh Oakley Moses; Defendant: Benigno Odiwuor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 438 of 2017
- Procedural Posture
- Notice of Motion / Interlocutory Application Ruling
- Outcome
- Status quo to be maintained; preliminary objection withdrawn; no order as to costs; main suit set for hearing.
- Judges
- GMA Ongondo
- Legal Topics
- Injunctions, Status Quo Orders, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chandoh Oakley Moses
Plaintiff
Benigno Odiwuor
Defendant
Procedural Posture
Notice of Motion / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with land parcel SUNA WEST/WASWETA II/3012 pending determination of the suit.
- 2 Whether the preliminary objection raised by the defendant is meritorious and should be upheld.
Ratio Decidendi
The court did not make a final determination on the merits of the application for injunction or the preliminary objection. Instead, by consent of the parties, it ordered that the status quo be maintained, meaning no party shall undertake further development on the suit premises pending the hearing and determination of the main suit. The preliminary objection was marked as withdrawn with no order as to costs. The court thus preserved the subject matter and deferred substantive issues to the full hearing.
Court Disposition
Status quo to be maintained; preliminary objection withdrawn; no order as to costs; main suit set for hearing.
Orders
- Status quo to prevail: no party shall undertake further development on the suit premises pending hearing and determination of the suit.
- Preliminary objection dated 29/9/2017 marked as withdrawn with no order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
ENVIRONMENT AND LAND COURT
ELC CASE NO. 438 OF 2017
CHANDOH OAKLEY MOSES.....................PLAINTIFF
-versus-
BENIGNO ODIWUOR...............................DEFENDANT
RULING
1. A Notice of Motion dated 11/5/2017 by the plaintiff/applicant represented by Kwanga Mboya advocates is coming up for hearing today. In the Notice of Motion the orders sought are :-
a) THATthis application be certified as urgent and same be dispensed with in the first instance.
b) THAT a temporary order of injunction do issue to the respondent/Defendant, restraining him his servants, agents and/or otherwise howsoever from trespassing, wasting alienating, disposing off or in any way interfering with land parcelNo. SUNA WEST/WASWETA II/3012pending the hearing of this application.
c) THATa temporary order of injunction do issue to the respondent, restraining him, his servants, agents and/or otherwise howsoever from trespassing, wasting, alienating, disposing off or in any way interfering with land parcel no. SUNA WEST/WASWETA 11/3012, pending hearing and determination of the suit herein.
d) THATthe costs of this application be provided for.
2. There is a Preliminary Objection dated 29/9/2017 by Mr. Kisia counsel for the Defendant/Respondent. The grounds of the preliminary objection are :-
1) THAT the ownership of the suit premise is a subject for determination hence the application is premature.
2) THAT the applicant has not raised the legal threshold for grant of injunction.
3) THAT the respondent has registered interest in the suit premises.
4) THAT the application is fatally defective.
3. Mr. Kisia for the defendant/respondent and Mr. Brian Mboya holding brief for Kwanga Mboya, counsel for the plaintiff/respondent have agreed that the Notice of Motion be comprised that status quo to prevail. That no party to the suit shall confine with further development on the suit premises pending hearing and determination of the suit.
4. The parties have agreed that the Preliminary Objection dated 29/9/2017 be and is hereby marked as withdrawal with no orders as to costs.
5. Hearing on 14/3/2015 of the main suit. The parties may file further documents and serve them within 30 days from the date hereof.
DELIVERED, DATEDand SIGNEDat MIGORI this 23th day of November 2017.
G. ONGONDO
JUDGE
In presence of :-
Mr. Brian Mboya for Plaintiff
Mr. Kisia for the Defendant
Tom Maurice – Court Assistant.