[2011] KEHC 640 (KLR)
The court held that the pending interlocutory applications for injunction should be determined on the basis of affidavit evidence in line with Order 51 rule 3 of the Civil Procedure Rules. However, if the parties agree, they may proceed to full trial with oral testimony as per Order 11. The court enforced its...
Source-derived case information.
- Citation
- [2011] KEHC 640 (KLR)
- Parties
- Plaintiff: Joel Kaburi Kibunja; Defendant: Margaret Wothaya Kirweya; Defendant: Sarah Wanjiru Njiri; Defendant: The Registrar of Titles, Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 450 of 2010
- Procedural Posture
- Civil Suit / Interlocutory Application for Injunction
- Outcome
- Directions issued for filing of affidavits and hearing of interlocutory applications; compliance with previous orders enforced.
- Judges
- EM Muriithi
- Legal Topics
- Interlocutory Injunctions, Affidavit Evidence, Case Management, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kaburi Kibunja
Plaintiff
Margaret Wothaya Kirweya
Defendant
Sarah Wanjiru Njiri
Defendant
The Registrar of Titles, Mombasa
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applications for interlocutory injunction should be determined on affidavit evidence or oral testimony.
- 2 Whether the parties should be allowed to proceed to full trial on merits or continue with interlocutory applications.
- 3 Whether the court's previous orders regarding filing of affidavits and hearing dates should be enforced.
Ratio Decidendi
The court held that the pending interlocutory applications for injunction should be determined on the basis of affidavit evidence in line with Order 51 rule 3 of the Civil Procedure Rules. However, if the parties agree, they may proceed to full trial with oral testimony as per Order 11. The court enforced its previous directions regarding the filing of affidavits, setting new timelines for compliance, and directed that the applications be heard after compliance or, alternatively, the matter proceed to full trial if parties concur. The court exercised its discretion to manage the proceedings efficiently and ensure compliance with procedural rules, emphasizing the importance of timely...
Court Disposition
Directions issued for filing of affidavits and hearing of interlocutory applications; compliance with previous orders enforced.
Orders
- The 2nd defendant shall file the affidavit of Mrs. Grace Okumu, advocate within 7 days from the date of the ruling.
- The plaintiff may respond to the affidavit within 7 days after service.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 450 OF 2010
JOEL KABURI KIBUNJA........................................................PLAINTIFF
VERSUS
MARGARET WOTHAYA KIRWEYA
SARAH WANJIRU NJIRI
THE REGISTRAR OF TITLES, MOMBASA......... ............DEFENDANTS
R U L I N G
1. Upon hearing the advocates for the parties and upon reading the court order of 28/3/11, I find that the court did order on that date that:-
(1)The 2nd defendant do file and serve within 14 days an affidavit by Mrs. Okumu advocate;
(2)The plaintiff be at liberty to file and serve a further affidavit within 14 days of service of the affidavit in (1) above;
(3)Hearing be stood over to 18/5/2011 (now past) and interim order extended until then; and
(4)Summons to issue to the plaintiff and the 1st defendant to attend court and confirm the issue of consideration.
2. As I take over the hearing of the matter in accordance with Order 18 rule 8 of the Civil Procedure Rules with the partly-heard applications for injunction on behalf of the plaintiff and the 2nd defendant dated the 10/3/2011 and 25/2/2011, respectively, I find that since the matter before the court is the interlocutory applications for injunction pending the hearing and determination of the suit, the proceedings should be conducted on the basis of affidavit evidence in accordance with Order 51 rule 3 of the Civil Procedure Rules.
3. The plaintiff and the 1st defendant may be summoned to give oral testimony if the parties agree to, and prepare the suit, for full trial in accordance with Order 11 of the Civil Procedure Rules.
4. Being of this view of the matter, I now direct that the 2nd defendant shall file the affidavit of Mrs. Grace Okumu, advocate within 7 days from today and the plaintiff will respond thereto, if necessary, within 7 days after service thereof; and that the two applications dated the 25/2/11 and the 10/3/11 be heard thereafter on a date to be fixed by the court in consultation of the parties, unless the parties in the alternative concur to the full trial of the case on its merit.
Dated and delivered this 4th day of November, 2011
EDWARD M. MURIITHI
JUDGE
In the presence of
...............................................for the Applicant
................................................ for the Respondent
................................................. Court clerk.
EDWARD M. MURIITHI
JUDGE