[2017] KEELC 2311 (KLR)
The court found that the application for a temporary injunction had been overtaken by events, as the defendant had already demolished the structures on the suit property. Consequently, the relief sought was no longer available or meaningful. The court allowed the withdrawal of the application without an order as to...
Source-derived case information.
- Citation
- [2017] KEELC 2311 (KLR)
- Parties
- Plaintiff: Erastus Murithi Mwongera Alias Rithi Mwongera; Defendant: Kenya Urban Roads Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 233 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application Withdrawal
- Outcome
- application withdrawn as superfluous; no order as to costs
- Legal Topics
- Temporary Injunction, Demolition of Structures, Ownership of Land, Quiet Enjoyment, Urban Roads, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Murithi Mwongera Alias Rithi Mwongera
Plaintiff
Kenya Urban Roads Authority
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application Withdrawal
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit property pending determination of the application and suit.
- 2 Whether the application has been rendered superfluous by the demolition of the suit property by the defendant.
Ratio Decidendi
The court found that the application for a temporary injunction had been overtaken by events, as the defendant had already demolished the structures on the suit property. Consequently, the relief sought was no longer available or meaningful. The court allowed the withdrawal of the application without an order as to costs and directed the plaintiff to amend his pleadings if necessary. The fundamental reasoning was that courts do not grant orders in vain or where the subject matter has ceased to exist, and procedural fairness allows for withdrawal in such circumstances.
Court Disposition
application withdrawn as superfluous; no order as to costs
Orders
- The application dated 24th April, 2017 is withdrawn with no order as to costs.
- The plaintiff to amend his plaint and other documents, if necessary, within the next 14 days.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 233 OF 2017
ERASTUS MURITHI MWONGERA ALIAS RITHI MWONGERA ....PLAINTIFF
VERSUS
KENYA URBAN ROADS AUTHORITY.……………………...........DEFENDANT
RULING
1. This application is dated 24th April, 2017 and seeks orders:
1. That this application be certified s urgent and be heard exparte at the first instance.
2. That the Honourable Court be pleased to issue an order of temporary injunction restraining the Defendant, his assigns, agents, workers, employees and Successors in title from entering, occupying, remaining or in any other way interfering with the Plaintiff’s or the Plaintiff’s workers, employees, assigns and agents user and quiet enjoyment of PLOT NO. M 60 C CHUKA TOWNSHIP pending hearing and determination of this application.
3. That the Honourable Court be pleased to issue an order of temporary injunction restraining the Defendant, his assigns, agents, workers, employees and Successors in title from entering, occupying, remaining or in any other way interfering with the Plaintiff’s or the Plaintiff’s workers, employees, assigns and agents user and quiet enjoyment of PLOT NO. M 60 C CHUKA TOWNSHIP pending hearing and determination of this suit.
4. That costs of this application be provided for;
2. The application is buttressed by the affidavit of Erastus Murithi Mwongera ALIAS Rithi Mwongera and has the following grounds:
(a) That the Applicant is the registered owner of PLOT NO. M 60 C CHUKA TOWNSHIP.
(b) That the Respondent has been overseeing the improvement of the roads in Chuka Town.
(c) That the said improvement has been ongoing for sometime now.
(d) That the said plot is touching one of the roads within Chuka Town.
(e) That the respondent has been threatening to demolish all the buildings on the applicant’s said plot.
(f) That true to its threats the respondent has now written to the applicant giving a removal indicating that the applicant should remove his structures on the land failure to which the respondent shall demolish the said structures.
(g) That the said buildings were built by the applicant with approval of all revelant authorities.
(h) That its fair, just and equitable that this application is granted.
3. On 27. 6.2017, Mr D.J. Mbaya told the court that he wished to withdraw this application because the defendant had already demolished the suit property, thus rendering the application superfluous. He would, however, proceed to prosecute the main suit.
4. This application is withdrawn with no costs.
5. The plaintiff to amend his plaint and other documents, if necessary, within the next 14 days.
6. Directions on 19. 7.2017.
7. It is so ordered.
Delivered in open court at Chuka this 27th day of June, 2017 in the presence of;
CA: Ndegwa
D.J. Mbaya for the plaintiff.
P. M. NJOROGE,
JUDGE.