[2013] KEHC 2778 (KLR)
The court found that the issue of ownership of the suit property could not be determined at the interlocutory stage and required full hearing and evidence. However, the balance of convenience favored the applicant, justifying the grant of prayers 2 and 6 of the motion dated 13th May 2013 as interim measures pending...
Source-derived case information.
- Citation
- [2013] KEHC 2778 (KLR)
- Parties
- Plaintiff: J P B (suing as the attorney to D F J D); Defendant: Roy Patrick Davis; Defendant: 4th, 5th, 6th and 7th defendants
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 89 of 2013
- Procedural Posture
- Land and Environment Case / Interlocutory Application Ruling
- Outcome
- Interlocutory orders granted in part; prayers 2 and 6 allowed pending hearing; costs in the cause.
- Legal Topics
- Matrimonial Property Dispute, Ownership Dispute, Interlocutory Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J P B (suing as the attorney to D F J D)
Plaintiff
Roy Patrick Davis
Defendant
4th, 5th, 6th and 7th defendants
Defendant
Procedural Posture
Land and Environment Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to interlocutory relief pending the hearing of the suit.
- 2 Whether the balance of convenience favors the grant of the orders sought.
- 3 Whether the issue of ownership of the suit property can be determined at the interlocutory stage.
Ratio Decidendi
The court found that the issue of ownership of the suit property could not be determined at the interlocutory stage and required full hearing and evidence. However, the balance of convenience favored the applicant, justifying the grant of prayers 2 and 6 of the motion dated 13th May 2013 as interim measures pending the hearing of the suit. The court declined to grant prayer 7 and ordered that each party bear their own costs.
Court Disposition
Interlocutory orders granted in part; prayers 2 and 6 allowed pending hearing; costs in the cause.
Orders
- Prayer no. 2 of the motion dated 13th May 2013 is granted pending the hearing of the suit.
- Prayer no. 6 of the motion dated 13th May 2013 is granted pending the hearing of the suit.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT MOMBASA
LAND AND ENVIRONMENT CASE NO. 89 OF 2013
J P B
(SUING AS THE ATTORNEY TO D F J D) .......PLAINTIFF
-VERSUS-
ROY PATRICK DAVIS & 6 OTHERS ............ DEFENDANTS
RULING
[1] The applicant filed this application on 13th May 2013. In the application he prayed for 8 prayers. During the hearing he prayed for prayers no. 2,6 and 7 only. He relied on the self explanatory affidavit of J P B.
Mr. Erendi Principal State Counsel appeared for 4th,5th,6th and 7th respondents. He did not oppose the application, however he had issues with prayer no. 7 which he opposed. Mr. Shimaka appeared for the 1st, 2nd, and 3rd respondents. He relied on the affidavit of Roy Patrick Davis entirely. The said affidavit is self explanatory. I have had the benefit of listening to all counsels herein. I have also read the affidavits sworn herein. The plaintiffs herein are alleged to have been man and wife at sometime. The land in question is alleged to have been their matrimonial home. This fact appears from the affidavit of the respondent.
The issue of who owns the suit properly cannot be determined at this interlocutory stage. Evidence must be heard on the same. The balance of convenience tilts in favor of the applicant. I grant her prayer no. 2 and 6 of the motion dated 13th May, 2013 pending the hearing of this suit. Each party shall bear their own costs.
Dated and delivered in open Court this 26th day of July, 2013.
S.N.MUKUNYA
JUDGE
26. 7.2013
M/s. Obara for the plaintiff absent
Mr. Ngeny for 1st,2nd,3rd defendants - absent
Eredi State Counsel - present for 4th,5th and 6th - defendants.