[2023] KEELC 21849 (KLR)
The court dismissed the plaintiff's application for temporary injunction on the basis that the applicant failed to comply with the court's directions issued on 9/10/2023, specifically the requirements to serve the respondents and file an affidavit of service, as well as to file written submissions. The court held...
Source-derived case information.
- Citation
- [2023] KEELC 21849 (KLR)
- Parties
- Plaintiff: Kenzo Hugues Ndaya Lusambo alias Iddi Ndaya Lusambo (Suing on Behalf and on Behalf of the Estate of Jamila Mpemba Alias Jeanette Von Rohr); Defendant: Mpemba Omar Mpemba; Defendant: Nassir Omar Mohamed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 25 of 2023
- Procedural Posture
- Environment and Land Miscellaneous Case / Ruling on Interlocutory Application
- Outcome
- Application dismissed for failure to comply with court orders.
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Injunctions, Non Compliance With Court Orders, Estate Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenzo Hugues Ndaya Lusambo alias Iddi Ndaya Lusambo (Suing on Behalf and on Behalf of the Estate of Jamila Mpemba Alias Jeanette Von Rohr)
Plaintiff
Mpemba Omar Mpemba
Defendant
Nassir Omar Mohamed
Defendant
Procedural Posture
Environment and Land Miscellaneous Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should grant a temporary injunction restraining the 2nd defendant from selling or transferring plot No. 2553 (Original No. 1035/301) Malindi and the rental building thereon pending hearing and determination of the application and suit.
- 2 Whether the application should be dismissed for failure to comply with court orders regarding service and filing of submissions.
Ratio Decidendi
The court dismissed the plaintiff's application for temporary injunction on the basis that the applicant failed to comply with the court's directions issued on 9/10/2023, specifically the requirements to serve the respondents and file an affidavit of service, as well as to file written submissions. The court held that in the absence of compliance with these procedural requirements, it could not proceed to determine the application on its merits. The dismissal was therefore grounded on procedural non-compliance rather than substantive consideration of the application for injunctive relief.
Court Disposition
Application dismissed for failure to comply with court orders.
Orders
- The application dated 21/9/2023 is dismissed for failure to comply with court orders.
Full Case Text
Judgment text and source record
22 paragraphs
Lusambo (Suing on Behalf and on Behalf of the Estate of Jamila Mpemba Alias Jeanette Von Rohr) v Mpemba & another (Environment & Land Miscellaneous Case 25 of 2023) [2023] KEELC 21849 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21849 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Miscellaneous Case 25 of 2023
FM Njoroge, J
November 30, 2023
Between
Kenzo Hugues Ndaya Lusambo alias Iddi Ndaya Lusambo (Suing on Behalf and on Behalf of the Estate of Jamila Mpemba Alias Jeanette Von Rohr)
Plaintiff
and
Mpemba Omar Mpemba
1st Defendant
Nassir Omar Mohamed
2nd Defendant
Ruling
1. This ruling is in respect of notice of motion dated September 21, 2023 lodged by the plaintiff seeking the following orders:1. That this application be certified urgent and service be dispensed with in the first instance.
2. That this honourable court be pleased to issue a temporary injunction against the 2nd defendant. That the urgency is the need to maintaining the status quo by restraining the 2nd defendant by himself, his appointed attorneys from selling and/or transferring plot No. 2553 (Original No. 1035/301) Malindi and the rental building standing thereon pending the hearing and determination of this application.
3. That this honourable court be pleased to issue a temporary injunction against the 2nd defendant. That the urgency is the need to maintaining the status quo by restraining the 2nd defendant by himself, his appointed attorneys from selling and/or transferring plot No. 2553 (Original No. 1035/301) Malindi and the rental building standing thereon pending the hearing and determination of this suit.
4. That the costs of this application be provided for.
2. The directions issued on 9/10/2023 by this court were inter alia that the respondents be served and an affidavit of service be filed. Written submissions were also to be filed by the parties with the applicant going first. None of these orders were complied with and this court cannot proceed to determine the present application on its merits. Consequently, the application dated 21/9/2023 is hereby dismissed for failure to comply with court orders.
DATED, SIGNED AND ISSUED AT MALINDI ON THIS 30TH DAY OF NOVEMBER 2023. MWANGI NJOROGEJUDGE, ELC, MALINDI.