[2014] KEHC 3179 (KLR)
The court held that the defendant's oral application for access to the suit premises for purposes of valuation or survey was essentially a repetition of relief already sought and compromised in the earlier application, which was settled by a consent order. Since the defendant had knowingly compromised its...
Source-derived case information.
- Citation
- [2014] KEHC 3179 (KLR)
- Parties
- Plaintiff: Raiya Construction Limited; Defendant: Sunsand Dunes Limited
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 179 of 2012
- Procedural Posture
- Civil Suit / Ruling on Oral Application for Access for Valuation/survey After Consent Order
- Outcome
- Defendant's oral application for access for valuation and/or survey is denied.
- Judges
- CW Meoli
- Legal Topics
- Consent Orders, Mandatory Injunctions, Security for Claim, Site Access, Valuation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raiya Construction Limited
Plaintiff
Sunsand Dunes Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Oral Application for Access for Valuation/survey After Consent Order
Legal Issues
- 1 Whether the defendant is entitled to access the suit premises for purposes of valuation and/or survey after compromising its earlier application by consent.
- 2 Whether granting the defendant's oral request would circumvent the terms of the consent order.
Ratio Decidendi
The court held that the defendant's oral application for access to the suit premises for purposes of valuation or survey was essentially a repetition of relief already sought and compromised in the earlier application, which was settled by a consent order. Since the defendant had knowingly compromised its application and had not complied with the terms of the consent (specifically, the deposit of security), granting the present request would amount to circumventing the consent order. The court therefore denied the defendant's oral application, emphasizing the binding nature of consent orders and the need for parties to adhere to their terms unless properly set aside.
Court Disposition
Defendant's oral application for access for valuation and/or survey is denied.
Orders
- Defendant's oral application for access for valuation and/or survey of the suit premises is denied.
- Parties to file their documents and take a hearing date in the registry.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CIVIL SUIT NO. 179 OF 2012
RAIYA CONSTRUCTION LIMITED …………………..…………..PLAINTIFF
VERSUS
SUNSAND DUNES LIMITED ……………………..…………….DEFENDANT
RULING
I have studied the amended pleadings herein and proceedings in respect of the consent order recorded in court by the parties on 14th March, 2013. Admittedly, the said consent was intended to compromise the Notice of Motion filed by the Defendant on 1st February, 2013 seeking inter alia a mandatory injunction to allow the defendant to carry out a valuation of the premises and works on plot No. 20120 Mambrui and thereafter an order directing the plaintiff to hand over the site.
The terms of the consent are clear and an application to set aside the same has reportedly been abandoned by the defendant. Under the terms of the consent the defendant was to deposit a sum of Kshs. 16, 304, 500/- as security for the plaintiff’s claim. The monies were not deposited.
The plaintiff is now asking the court to grant an order to enable survey and/or valuation of the premises for purposes of “moving the matter forward”. With respect, this oral request is no different from the second prayer in the compromised application. The defendant company knowingly compromised the said application in the terms of the consent order. In my considered view, by granting the defendant’s present request, the court will be circumventing the terms of the said consent. The defendant’s oral application for access for purposes of valuation and or survey of the suit premises is therefore denied.
I would strongly suggest that the parties explore the possibility of arbitration or other ADR mechanism suitable, in light of the nature of the dispute.
Delivered and signed at Malindi this 20th day of June, 2014 in the presence of Mr. Sumba for the Defendant. Mr. Obaga holding brief for Mr. Anyimba for the Plaintiff.
Court clerk - George
C. W. Meoli
JUDGE
Further Order
Let parties file their documents and take a hearing date in the registry.
C. W. Meoli
JUDGE