[2014] KEHC 5891 (KLR)
The court found that the applicant, having demonstrated occupation of the suit land, was entitled to an order maintaining the status quo pending the hearing and determination of the main suit. The court rejected the respondent's application for stay of proceedings, holding that the related suit (CMCC. 1349 of 2012)...
Source-derived case information.
- Citation
- [2014] KEHC 5891 (KLR)
- Parties
- Plaintiff: Elmi Musa Kaliya (Suing as attorney of Halima Musa Kaliya); Defendant: Francis Kasing Musinga; Defendant: Mariam Mohamed Muasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 250 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Applications
- Outcome
- Partial grant and partial dismissal of applications.
- Judges
- SN Mukunya
- Legal Topics
- Injunctive Relief, Status Quo Orders, Landlord Tenant Disputes, Fraudulent Transfer, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elmi Musa Kaliya (Suing as attorney of Halima Musa Kaliya)
Plaintiff
Francis Kasing Musinga
Defendant
Mariam Mohamed Muasa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from continuing construction on the suit land pending determination of the suit.
- 2 Whether the suit should be stayed pending payment of costs awarded in a related matter (CMCC. 1349 of 2012).
Ratio Decidendi
The court found that the applicant, having demonstrated occupation of the suit land, was entitled to an order maintaining the status quo pending the hearing and determination of the main suit. The court rejected the respondent's application for stay of proceedings, holding that the related suit (CMCC. 1349 of 2012) was a separate and distinct matter, and that the existence of a costs award in that suit did not justify staying the present proceedings. The court emphasized that the judgment debtor in the related suit was free to execute the decree for costs, and that the requirements for stay under Order 25 rule 4 had not been satisfied. Accordingly, the respondent's application was...
Court Disposition
Partial grant and partial dismissal of applications.
Orders
- Status quo to be maintained on the suit land until the suit is heard and determined.
- Respondent's application dated 12th March, 2013 for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 250 OF 2012
ELMI MUSA KALIYA (Suing as attorney of HALIMA MUSA KALIYA)...PLAINTIFF
- VERSUS-
1. FRANCIS KASING MUSINGA................................................1ST DEFENDANT
2. MARIAM MOHAMED MUASA................................................2ND DEFENDANT
RULING
[1] The applicant herein filed his motion dated 2nd November, 2012 praying for a temporary injunction to issue against the respondents restraining them from continuing construction on unregistered land named therein as title number 1666/V1/MN/CR. 11002 and that an injunction do issue against them pending the hearing of this suit.
The applicant through her affidavit says that she has lived on this land and was paying rent and rates. She attached photocopies of rates receipts to the owner since 1983. She states she has built a permanent house. She avers that the land has since been sold to the first defendant Francis Kasinga Masila without her knowledge and the land owner has since died. She avers she learnt this from a letter from Port Rietz location chief's office. The respondent disputes these allegations and avers that one Halima Musa has been his tenant in the premises since 2006. He avers the applicant Halim Musa has refused to pay rent and is now in arrears of Kshs. 150,000/-. He denies that the suit land was fraudulently transferred to him. I find that since Halima Musa has been living on the suit land, this motion commends itself for an order of status quo. The same shall be maintained until the suite is heard and determined.
[2] The respondent filed his motion dated 12th March, 2013 praying that this suit be stayed until the said Halima Musa Katoo pays Ksh. 85,790 granted in CMCC. 1349 of 2012 Elimi Musa Kaliya v Francis Kasing Masila. Mr. Mwakileti argued this application together with the application of 2nd November, 2012 and argued that the court has jurisdiction to stay the suit brought upon the same cause of action. He argued that the prayers are the same and that requirements under Order 25 rule 4 are satisfied.
[3] I am afraid I do not agree. CMCC. No. 1349 of 2012 is a complete and different suit by itself. The judgment debtor is at liberty to execute the decree on costs on the same the case in this court not withstanding . This notice of motion dated 12nd March, 2013 is without merit and is dismissed with costs.
It is so ordered.
Dated and delivered in open court at Mombasa this 27th day of March, 2014.
S. MUKUNYA
JUDGE
27. 3.2014
In the presence of:
Miss. Bii Advocate for the Respondent
Mr. Mwakileti Ndumia Advocate for the Applicant