[2011] KEHC 4327 (KLR)
The court found that the defendants' replying affidavit was not considered in the previous ruling, constituting an error on the face of the record. The explanation provided by the defendants' counsel for his absence at the hearing was deemed plausible, as evidence showed the matter was on the call over list, and the...
Source-derived case information.
- Citation
- [2011] KEHC 4327 (KLR)
- Parties
- Plaintiff: Hutu Mistry; Defendant: Porus Phiroze Mistry; Defendant: Masari Flats Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2300 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Interlocutory Injunction
- Outcome
- Application to set aside interlocutory injunction allowed; previous orders set aside; application to be heard afresh; costs to plaintiff.
- Judges
- GG Okwengu
- Legal Topics
- Interlocutory Injunctions, Setting Aside Orders, Possession of Property, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hutu Mistry
Plaintiff
Porus Phiroze Mistry
Defendant
Masari Flats Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Interlocutory Injunction
Legal Issues
- 1 Whether the interlocutory injunction issued on 19th October, 2010 should be set aside due to failure to consider the defendants' replying affidavit.
- 2 Whether the defendants' absence at the hearing of the application dated 21st November, 2007 was justified.
- 3 Whether there was an error on the face of the record warranting the setting aside of the orders.
Ratio Decidendi
The court found that the defendants' replying affidavit was not considered in the previous ruling, constituting an error on the face of the record. The explanation provided by the defendants' counsel for his absence at the hearing was deemed plausible, as evidence showed the matter was on the call over list, and the confusion regarding the hearing date was understandable. In the interests of justice and fairness, the court held that the ruling and orders issued on 19th October, 2010 should be set aside, and the application dated 21st November, 2007 should be heard afresh. The plaintiff was awarded the costs of the application.
Court Disposition
Application to set aside interlocutory injunction allowed; previous orders set aside; application to be heard afresh; costs to plaintiff.
Orders
- The ruling and orders issued on 19th October, 2010 are set aside.
- The application dated 21st November, 2007 shall be heard afresh.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.2300 OF 2007
HUTU MISTRY……………………………................……………..PLAINTIFF
VERSUS
PORUS PHIROZE MISTRY……………..............………...1ST DEFENDANT
MASARI FLATS LTD……………………..............……….2ND DEFENDANT
R U L I N G
1. On 19th October, 2010, this court delivered a ruling in which it issued inter alia an order of interlocutory injunction retraining the 1st defendant Porus Phiroze Mistry by himself, his agents or servants from evicting Hutu Mistry (hereinafter referred to as the plaintiff), from Flat No.4 erected on LR No.209/7124, Nairobi, (hereinafter referred to as the suit property), or otherwise interfering with the plaintiff’s possession or trespassing, leasing, mortgaging, selling or transferring the suit property.
2. The defendants have now moved this court under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking to have the order of interlocutory injunction set aside. The defendants explain that although they were not present at the hearing during the application for the interlocutory injunction, a replying affidavit had been filed, in which the 1st defendant maintained that he is the one who has been in occupation of the suit property since October, 2000. It was therefore pointed out that the court finding that the plaintiff has been in an interrupted possession of the suit property since 1982 was an error. Mr. Goswami who is the advocate for the defendant explains that he did not attend court for the hearing of the application dated 21st November, 2007, because the matter was taken out of the hearing list during the September, 2010 call over.
3. Counsel for the plaintiff on the other hand maintains that the date of the hearing of the application was taken by consent, and that being an application, it did not need confirmation at the call over. It is argued that the defendants are not deserving of the orders sought as they are guilty of inordinate delay.
4. I have considered the application for setting aside the interlocutory order of injunction. It is evident that the 1st defendant did swear a replying affidavit in response to the application dated 21st November, 2007. This replying affidavit was not taken into account when I prepared the ruling delivered on 19th October, 2010. Thus, there is an error on the face of the record. Further, counsel for the defendant has explained why he did not attend court for the hearing of the application dated 21st November, 2007. That sounds plausible because evidence has been exhibited showing that this suit appeared on the call over list, even though what was coming for hearing was an application and not the full hearing of the suit.
5. In the circumstances it is only fair and just that the ruling of 19th October, 2010 and the orders issued be set aside, and that the application dated 21st November, 2007 be heard afresh. The plaintiff/respondent shall have costs of this application. Orders accordingly.
Dated and delivered this 22nd day of June, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
Anzalla for the plaintiff
Goswani for the 1st defendant/applicant
B. Kosgei - Court clerk