[2016] KEHC 960 (KLR)
The court found that since the main suit (HCC No. 126 of 2014) had already been determined by a ruling striking out the suit and ordering the plaintiff to hand over the premises to the landlord, there was no longer any foundation for considering the merits of the interlocutory applications in the consolidated...
Source-derived case information.
- Citation
- [2016] KEHC 960 (KLR)
- Parties
- Plaintiff: Milki Limited; Defendant: Patrick Mukiri Kabundu; Applicant: Patrick Mukeri Kabundu t/a Ivory Sports Pub; Respondent: Joe Brunlenner; Respondent: Josef Brunlenner
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 126 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Applications Post Consolidation
- Outcome
- applications dismissed as overtaken by events; files ordered closed
- Judges
- CA Otieno
- Legal Topics
- Tenancy Disputes, Contempt of Court, Injunctive Relief, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milki Limited
Plaintiff
Patrick Mukiri Kabundu
Defendant
Patrick Mukeri Kabundu t/a Ivory Sports Pub
Applicant
Joe Brunlenner
Respondent
Josef Brunlenner
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Applications Post Consolidation
Legal Issues
- 1 Whether the court should grant orders stopping demolitions or constructions on the suit land pending determination of the main suit and tribunal cause.
- 2 Whether the respondents should be committed to civil jail and assets sequestered for alleged contempt of tribunal orders.
Ratio Decidendi
The court found that since the main suit (HCC No. 126 of 2014) had already been determined by a ruling striking out the suit and ordering the plaintiff to hand over the premises to the landlord, there was no longer any foundation for considering the merits of the interlocutory applications in the consolidated miscellaneous files. The applications for injunctive relief and contempt were therefore overtaken by events, and the files were ordered closed unless an appropriate application to reopen them was brought. The court emphasized that interlocutory relief cannot survive the final determination of the substantive dispute to which it relates.
Court Disposition
applications dismissed as overtaken by events; files ordered closed
Orders
- The two miscellaneous applications are declared overtaken by events and are dismissed.
- The two files are ordered closed unless an appropriate application is brought to reopen them.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 126 OF 2014
(Consolidated with Miscellaneous Civil Application No. 149 and 151 of 2015)
MILKI LIMITED..................................................................PLAINTIFF
VERSUS
PATRICK MUKIRI KABUNDU.............................................DEFENDANT
R U L I N G
1. These two files were on the 9. 9.2015 consolidated with High Court Civil Suit No. 126 of 2014. That consolidation was informed by the fact that all concerned what the plaintiff in the suit and the applicant in these two applications, and confirmed by the defendant/in HCC No. 126 of 2014 as a tenancy agreement between the two dated 2/1/2009 and created over that parcel of land situate within Mombasa County and known as Sub-division No. 1432 of Section I mainland North and Registered as C.R. 14247/1.
2. In these two applications the applicant PATRICK MUKERI KABUNDU t/a IVORY SPORTS PUB seeks orders that the court stops all demolitions or constructions on the suit land pending the hearing and determination of the HCC No. 126 of 2014 as well as BPRT CAUSE NO. 33 OF 2013.
3. In Misc. 149 of 2015 the court was called upon to find JOE BRUNLENNER and JOSEF BRUNLENNER be nominated to civil jail and an order of sequestration of asset be issued against plot no. 14321/MN and CR No. 14247/1 at a value equivalent to Kshs.20,000,000 on the basis that the Business Premises Rent Tribunal in BPRT No. 33 of 2013 had issued orders which orders had been disobeyed by the landlord. The grounds of the application are that the order was duly served upon the landlord on 27/4/2015 and service acknowledged by one JOSEF BRUNLENNER in court during the hearing of HCC No. 126 of 2014 but despite service the alleged contemnors had refused to restore electricity to the suit premises.
4. I have pointed out that these three files were consolidated as they were considered related and a decision in one HCC No. 126 of 2014 world affect the others. This court did renders a ruling in HCC 126 of 2014 on 3/5/2016, strike out the suit and ordered that the plaintiff in that suit hands over the suit premises to the landlord on or before the 30/6/2016.
5. Pursuant to that decision whether or not it be effected, there is no foundation upon which I can consider the merits of the application in these two files. I consider these two applicants overtaken by the events in that suit and now declare that the two files be closed unless an appropriate application shall be brought to reopen them.
Dated this 8th day of July 2016.
HON. P.J.O. OTIENO
JUDGE