[2017] KEELC 2018 (KLR)
The court found that the plaintiff's application for a temporary injunction was unopposed as the defendants, though properly served and represented, failed to file any response or grounds of opposition within the time allowed. No explanation was provided for the delay, and the court saw no basis to exercise its...
Source-derived case information.
- Citation
- [2017] KEELC 2018 (KLR)
- Parties
- Plaintiff: Nicholus Kinyua Mbui; Defendant: Keysian Auctioneers; Defendant: Barclays Bank of Kenya Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 80 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for temporary injunction allowed as unopposed.
- Judges
- BN Olao
- Legal Topics
- Interlocutory Injunctions, Mortgage Enforcement, Service of Process, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholus Kinyua Mbui
Plaintiff
Keysian Auctioneers
Defendant
Barclays Bank of Kenya Ltd
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from selling or interfering with the suit property pending determination of the suit.
- 2 Whether the defendants were properly served and given adequate opportunity to respond to the application.
Ratio Decidendi
The court found that the plaintiff's application for a temporary injunction was unopposed as the defendants, though properly served and represented, failed to file any response or grounds of opposition within the time allowed. No explanation was provided for the delay, and the court saw no basis to exercise its discretion to grant further time. Consequently, the application was allowed as prayed in prayer 3, granting a temporary injunction restraining the defendants from selling, dealing, interfering, alienating, or disposing of the suit property pending the hearing and determination of the suit. The court further directed the parties to comply with pre-trial directions to ensure...
Court Disposition
Plaintiff's application for temporary injunction allowed as unopposed.
Orders
- A temporary injunction is issued restraining the defendants, their agents, servants, employees or anyone acting on their behalf from selling, dealing, interfering, alienating or disposing of parcel MUTIRA/KAGUYU/1887 pending hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
ELC CASE NO. 80 OF 2017
NICHOLUS KINYUA MBUI...........................................................PLAINTIFF
VERSUS
KEYSIAN AUCTIONEERS.....................1ST DEFENDANT/RESPONDENT
BARCLAYS BANK OF KENYA LTD.....2ND DEFENDANT/RESPONDENT
RULING
This is in respect to the Plaintiff’s Notice of Motion dated 18th May 2017 brought under Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules and Sections 1, 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act. It seeks the following orders:
1. Spent.
2. Spent.,
3. That the Honourable Court be pleased to issue orders of temporary injunction restraining the defendants by themselves, their agents, servants, employees or anybody acting on their behalf from selling, dealing, interfering, alienating or disposing of all that parcel of land known as MUTIRA/KAGUYU/1887 pending the hearing and determination of this suit.
The application is based on the grounds set out therein and supported by the affidavit of NICHOLUS KINYUA MBUI the plaintiff herein.
The gist of the application is that whereas the plaintiff took a loan of Ksh. 5,500,000 secured by the property MUTIRA/KAGUYU/1887 (the suit property) and has been servicing the same, the defendants wish to sell the said property yet no proper notice was issued. Further, that the National Irrigation Board has made an undertaking to pay the 2nd defendant all money owed to it hence this application.
Though served with the application, summons to enter appearance and plaint on 23rd May 2017, none of the two defendants filed any reply hereto although the firm of MURIU MUNGAI & CO. ADVOCATESentered appearance on their behalf on 7th June 2017.
When the application came up for inter-parte hearing on 15th June 2017, MS THUNGU advocate holding brief for counsel for the defendant sought three days to file a replying affidavit. That application was objected to by MR. ABUBAKAR advocate for the plaintiff who informed the Court that the defendants had sufficient time.
The application was indeed served in good time and the defendants had sufficient time to file their responses thereto yet by 15th June 2017, some three weeks later, no replying affidavit nor grounds of opposition had been filed by the defendants. No explanation has been given as to why the defendants have not done so and I therefore do not have any material on which I can exercise my discretion to grant the defendants more time to respond to the application which was filed under certificate of urgency.
In the circumstances therefore, the plaintiff’s Notice of Motion dated 18th May 2017 is not opposed. It is allowed in terms of prayer 3 thereof.
Costs shall be in the cause.
The parties are hereby directed to comply with all pre-trial directions so that this suit can be heard and determined within the next 12 months.
B. N. OLAO
JUDGE
16TH JUNE, 2017
Ruling delivered, dated and signed in open Court this 16th day of June 2017
Ms Kiragu for Plaintiff present
Ms Njiru for Mr. Muriu Mungai for Defendants present.
B.N. OLAO
JUDGE
16TH JUNE, 2017