[2009] KEHC 1471 (KLR)
The court found that the applicant had established a prima facie case that warranted the preservation of the status quo. The interests of justice required that no further construction or detrimental acts be carried out by the defendant on the disputed road reserve until the main suit is heard and determined. The...
Source-derived case information.
- Citation
- [2009] KEHC 1471 (KLR)
- Parties
- Plaintiff: Said Salim Mohamed; Defendant: Acil Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 130 of 2009
- Procedural Posture
- Civil Case / Interlocutory Application (ruling on Injunction)
- Outcome
- Application partially allowed.
- Judges
- JV Juma
- Legal Topics
- Interlocutory Injunctions, Land Access Disputes, Road Reserve Encroachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Salim Mohamed
Plaintiff
Acil Limited
Defendant
Procedural Posture
Civil Case / Interlocutory Application (ruling on Injunction)
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of a temporary injunction against the defendant's construction activities.
- 2 Whether the construction by the defendant constitutes an obstruction to the plaintiff's access to his property via the road reserve.
- 3 Whether the status quo should be maintained pending the hearing and determination of the main suit.
Ratio Decidendi
The court found that the applicant had established a prima facie case that warranted the preservation of the status quo. The interests of justice required that no further construction or detrimental acts be carried out by the defendant on the disputed road reserve until the main suit is heard and determined. The court declined to order demolition at this interlocutory stage, holding that such a drastic remedy should only be considered after a full hearing on the merits. Accordingly, the court granted a temporary injunction restraining the defendant from constructing or interfering with the road leading to Plot No. II/MN/645, pending the final determination of the suit, but refused the...
Court Disposition
Application partially allowed.
Orders
- A temporary injunction is issued restraining the defendant, its agents, servants, or employees from constructing a building along the road leading to Plot Number II MN/645 or doing anything detrimental to the plaintiff’s interest and/or rights over the said road pending the hearing and final determination of this suit.
- The prayer for demolition of the construction is disallowed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA Civil Case 130 of 2009
SAID SALIM MOHAMED........................PLAINTIFF
VERSUS
ACIL LIMITED.........................................DEFENDANT
***************************
RULING
Before this court is the Applicant’s Chamber Summons dated 6th May 2009 in which he seeks inter alia the following orders:-
“2. THAT a temporary injunction do issue against the defendant itself, its agents and/or servants and/or employees from constructing a building along the road leading to Plot Number II MN/645 or doing anything detrimental to the plaintiff’s interest and/or rights over the said road pending the hearing and final determination of this suit.
3. THAT the construction built by the Respondent on said road reserve be demolished”.
The application was opposed and the Respondent filed their replying affidavit on 21st May 2009. Mr. Owino appeared on behalf of the Applicant whilst Mr. Bryant did appear on behalf of the Respondent. Arguments were made by way of oral submissions in court.
At the centre of the dispute is the construction being carried out by the Respondent on its plot, subdivision number 348, section II, Mainland North (hereinafter referred to as “Plot No. 348”). The Applicant in his supporting affidavit dated 6/05/2009 states that this construction is encroaching on a road and thereby causes an obstruction to his access to his own farm on plot No.II/MN/645 (hereinafter referred to as “Plot No. 645”.At this point I am not engaged in determining the merits or demerits of the Plaintiff’s suit. At this point the Plaintiff/Applicant is merely seeking interim interlocutory orders. The principles forming the basis for an award of interlocutory orders were very clearly and succinctly enunciated in the celebrated case of Giella –vs- Cassman Brown [1973] E.A. 358. In coming to a decision on this application I will be guided by this precedent. I have listened to the submissions of learned counsel and I have carefully perused and considered the annextures thereto. I am convinced that the Applicants have made out a prima facie case. I am equally convinced that the interests of justice would best be served at this stage by maintaining the status quo. Certain pertinent decisions may only be reached upon hearing evidence adduced at the full hearing of the suit. For the above reasons I do hereby allow this present application in terms of prayer (2) thereof. Prayer (3) is hereby disallowed. These orders to remain in force pending the hearing and final determination of the main suit. Costs in the cause.
Dated and Delivered at Mombasa this 15th day of October 2009.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Owino for Applicant
Mr. Gathuku holding brief for Mr. Bryant for Defendant
M. ODERO
JUDGE
15/10/2009