[2018] KEELC 1564 (KLR)
The court held that the applicant's attempt to discharge orders issued in ELC 751 of 2017 through an application in this suit (ELC 748 of 2017) was procedurally improper. The court emphasized that, in the absence of an order for consolidation, applications to discharge or vary orders must be made in the file where...
Source-derived case information.
- Citation
- [2018] KEELC 1564 (KLR)
- Parties
- Plaintiff: Innfield Investment Limited; Defendant: Eka Hotel
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 748 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Status Quo Orders, Interlocutory Applications, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Innfield Investment Limited
Plaintiff
Eka Hotel
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether orders granted in a different file (ELC 751 of 2017) can be discharged through an application in this suit.
- 2 Whether the applicant is entitled to an order directing both parties to maintain a maximum of three security officers each on the suit property.
- 3 Whether the injunctive orders previously granted should be discharged and replaced with an order of maintenance of status quo.
Ratio Decidendi
The court held that the applicant's attempt to discharge orders issued in ELC 751 of 2017 through an application in this suit (ELC 748 of 2017) was procedurally improper. The court emphasized that, in the absence of an order for consolidation, applications to discharge or vary orders must be made in the file where those orders were issued. Furthermore, the court noted that the applicant's substantive request had already been addressed in ELC 751 of 2017, where an order for maintenance of status quo had been granted, effectively discharging the interim injunction. The court found no merit in the applicant's request for an order allowing each party to maintain a maximum of three security...
Court Disposition
application dismissed
Orders
- The applicant's notice of motion dated 26th February 2018 is dismissed.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC CASE NO.748 OF 2017
INNFIELD INVESTMENT LIMITED................PLAINTIFF
=VERSUS=
EKA HOTEL.......................................................DEFENDANT
RULING
1. This is a ruling in respect of a notice of motion dated 26th February 2018. The application seeks orders of this court discharging the injunction orders given in ELC No.751 of 2017 Samco Holdings Limited t/a Eka Hotel Vs Patrick Nyamweya. The applicant also seeks an order from the court directing both parties to maintain a maximum of three security officers each on the suit property until hearing and determination of this suit and the suit in ELC 751 of 2017. In the alternative the applicant seeks grant of a temporary injunction in terms of prayer 3 of notice of motion dated 12th December 2017.
2. The applicant contends that it is claiming the same property on the ground with the respondent herein;that the court granted orders of maintenance of status quo in ELC 751 of 2017 but later granted interim injunction restraining its director who is a defendant in ELC 751 of 2017. The applicant contends that the injunctive orders were given after the court was misled and that the said injunctive orders should be discharged and an order of maintenance of status quo granted instead.
3. The applicant’s application is opposed by the respondent through a replying affidavit sworn on 2nd May 2018 and a further affidavit sworn on 27th March 2018. The respondent contends that the application is an abuse of the process of the court in that it seeks to have orders given in a different file discharged; that the parties in ELC 751 of 2017 and the advocates representing them are different and therefore the applicant is trying to confuse the court into granting orders.
4. I have considered the applicant’s application as well as the opposition thereto by the respondent. The issue for determination is whether orders given in a different file can be discharged from another file and whether injunctive orders can be given in the manner sought by the applicant. It is true that there are two related matters touching on the same property. There is no order for consolidation which has been made. If the applicant wanted the orders in ELC 751 of 2017 discharged, it should have made that application in ELC 751 of 2017. However be that as it may what the applicant was seeking in this case has already been achieved vide a ruling delivered on 28th June 2018 in ELC 751 of 2017 wherein the order of maintenance of status quo was granted which order effectively discharged the interim injunction which had been granted.
5. The applicant in prayer 4 is seeking an order of the court directing that each party be allowed to maintain a maximum of three security officers to guard the suit premises until this suit as well as ELC 751 of 2017 are heard and determined. I do not think it necessary for the court to make such an order. I decline to grant the order. I therefore find no merit in the applicant’s application which is hereby dismissed. Each party to bear its own costs.
It is so ordered.
Dated, Signed and delivered at Nairobion this 20thday of September 2018.
E.O.OBAGA
JUDGE
In the presence of;-
M/s Kwamboka for Mr Manwa for applicant
Mr Abdullahi for Respondent
Court Assistant: Hilda
E.O.OBAGA
JUDGE