[2016] KEELC 203 (KLR)
The court held that it had already determined the issue of an injunction in its earlier ruling of 18th October, 2013, where it found the plaintiff entitled to an injunction over the suit property. The defendant's current application sought to revisit and effectively reverse that decision without invoking the proper...
Source-derived case information.
- Citation
- [2016] KEELC 203 (KLR)
- Parties
- Plaintiff: Patric Khadondi; Defendant: Japhet Noti Charo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 86 of 2013
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Interlocutory Injunctions, Functus Officio, Res Judicata, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patric Khadondi
Plaintiff
Japhet Noti Charo
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the court is functus officio in respect of the defendant's application for an injunction.
- 2 Whether the defendant's application for an injunction is res judicata due to previous rulings on similar applications.
- 3 Whether the defendant is entitled to injunctive relief pending the hearing and determination of the suit.
Ratio Decidendi
The court held that it had already determined the issue of an injunction in its earlier ruling of 18th October, 2013, where it found the plaintiff entitled to an injunction over the suit property. The defendant's current application sought to revisit and effectively reverse that decision without invoking the proper procedures for review or setting aside. The court found that it was functus officio regarding the issue of injunction, and that the matter was also res judicata, as similar applications had been heard and determined both in this court and the Court of Appeal. Therefore, the defendant's application for an injunction was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 9th August, 2016 is dismissed with costs to the plaintiff/respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 86 OF 2013
PATRIC KHADONDI................................................................PLAINTIFF/RESPONDENT
=VERSUS=
JAPHET NOTI CHARO..........................................................DEFENDANT/APPLICANT
R U L I N G
1. In the Application dated 9th August, 2016, the Defendant is seeking for the following orders:-
(a) THAT upon interpartes hearing, an injunction be issued restraining the Plaintiff/Respondent by himself, his agents, workmen, servants, legal representatives or anyone claiming interest through him from demolishing, altering, leasing, selling, wasting and/or interfering with the current status of the suit property in any manner whatsoever pending the hearing and determination of the suit.
(b) THAT costs to this application be provided for.
2. The Application is premised on the ground that the suit property belongs to the Defendant/Applicant; that the Plaintiff/Respondent has since started demolishing the suit property and that unless the orders being sought are granted, the suit property will be damaged.
3. The Plaintiff's advocate filed a Notice of Preliminary Objection in which he averred that the Supporting Affidavit of 9th August, 2016 is fatally defective because it has not been signed by the Defendant and that this court is fanctus officio because similar Applications dated 13th November, 2013 and 29th May 2013 were heard and determined.
4. In his Replying Affidavit, the Plaintiff/Respondent deponed that he is the one who is in possession and occupation of the suit land; that this court and the Court of Appeal made a Ruling on a similar Application and that the matter is res judicata.
5. The Applicant's counsel did not file submissions. The Respondent's advocate filed submissions and authorities which I have considered.
6. This matter is part heard. The evidence of the Plaintiff, PW1, has been taken.
7. The Defendant is seeking for injunctive orders. The issue that I should determine first is whether this court is functus officio in so far as the Application is concerned.
8. The Plaintiff is in this matter filed an Application dated 29th May, 2013 for an order of injunction restraining the Defendant from dealing with the suit property pending the hearing and determination of the suit. This court allowed the said Application.
9. The Defendant is now seeking for an order of injunction pending the hearing and determination of the suit.
10. The issues raised in the current Application are the same issues that the Defendant raised when he opposed the Plaintiff's Application for injunction.
11. Indeed in my Ruling of 18th October, 2013, I found that the Plaintiff was entitled to an order of injunction because he had established a prima facie case with chances of success.
12. By filing the current Application, the Defendant is seeking to cancel my earlier orders in which I had held that it is the Plaintiff who is entitled to the suit property pending the hearing and determination of the suit.
13. It cannot be correct for the Defendant to seek to reverse the decision of the court in the manner that he is doing. This court, having determined the issue of injunction on 18th October, 2013 cannot revisit that issue unless the Application before it is for review or for setting aside of its orders.
14. For those reasons, I dismiss the Application dated 9th August, 2016 with costs.
Dated, signed and delivered in Malindi this 25thday of November, 2016.
O. A. Angote
Judge