[2011] KEHC 767 (KLR)
The court found that the issue of title to the suit property, Kwale/Galu/Kinondo/40, had already been conclusively determined by Hon. Justice Maraga in HCCC 438 of 2006, where the entry conferring title upon the plaintiff was quashed and title was vested in Formation House Limited, which then transferred it to the...
Source-derived case information.
- Citation
- [2011] KEHC 767 (KLR)
- Parties
- Plaintiff: Seif Salim Mwakarimu; Defendant: Kinondo Amani Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 349 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Review of Injunctive Orders
- Outcome
- Application for review dismissed; previous orders stand.
- Legal Topics
- Title Disputes, Injunctive Relief, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seif Salim Mwakarimu
Plaintiff
Kinondo Amani Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Injunctive Orders
Legal Issues
- 1 Whether the court should review its orders of 6th July 2011 granting injunctive relief to the plaintiff.
- 2 Whether the issue of title to the suit property has already been conclusively determined in previous proceedings.
- 3 Whether the defendants are entitled to possession and enjoyment of the suit property pending determination of the main suit.
Ratio Decidendi
The court found that the issue of title to the suit property, Kwale/Galu/Kinondo/40, had already been conclusively determined by Hon. Justice Maraga in HCCC 438 of 2006, where the entry conferring title upon the plaintiff was quashed and title was vested in Formation House Limited, which then transferred it to the defendant. The court held that, absent any appeal against that decision, the matter of title stands as determined. The court further held that the multiplicity of suits over the same subject matter only serves to cloud the issues and that the defendants, as the current registered proprietors, ought not to be denied the right to enjoy and possess their property except for lawful...
Court Disposition
Application for review dismissed; previous orders stand.
Orders
- The application for review of the orders of 6th July 2011 is dismissed.
- The orders of 6th July 2011 remain in force.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 349 OF 2008
SEIF SALIM MWAKIRIMU ……………….................….………..………….. PLAINTIFF
=VERSUS=
KINONDO AMANI LIMITED ……………..............…………………… DEFENDANT
RULING
Before court is the Notice of Motion dated 14th July 2011 by which the Applicants seek to have this court review its orders of 6th July 2011. A brief history of the matter this far will suffice. On 30th June 2011 the Applicants came before the High Court under Certificate of Urgency and obtained ex parte injunctive orders. On 6th July 2011 the Defendants/Respondents through their advocate MR. ABDALLA came to court once again ex parte and argued that the injunctive orders obtained were due to concealment of the fact that the question of Title had been resolved by Hon. Justice David Maragaon 28th February 2007 in Miscellaneous Application 438 of 2006. This present application was heard inter-partes and was opposed by the Respondents.
A look at this file and the various applications therein reveal a long and protracted dispute over the ownership of the suit property namely Kwale/Galu/Kinondo/40. This is a matter that cannot be resolved by way of applications. It would require a full hearing where evidence is adduced to resolve the issue. However I note that my learned brother Hon. Justice Maraga did render a decision over the question of Title in his decision of 28th February 2007 in HCCC 438/2006. At the moment and pending any appeal against that decision that is how the matter stands – the entry conferring Title upon Seif Salim Mwakarimu was quashed. Title in the suit land was therefore conferred on Formation House Limited who sold the same to Kinondo Amani Limited the Defendants herein. The HCCC 349 of 2008 pending before Hon. Justice Ojwang has not yet been determined and there is no guarantee that it will be decided in favour of the Plaintiff. It is my opinion that the multiplicity of suits over this matter does not auger well as it only serves to cloud issues. However I am satisfied that by the ruling of 28th February 2006 Title in the suit land was vested in Formation House who did transfer said Title to the Defendants herein. The Defendants ought not be denied the right to enjoy and possess their property except for lawful cause. As such I decline to review my ruling of 6th July 2011. The same still stands.
Dated and Delivered in Mombasa this 30th day of November 2011.
M. ODERO
JUDGE
In the presence of:
Mr. Abdalla for Defendant/Respondent
Ms. Njuguna holding brief for Mr. Oddiaga for Plaintiff/Applicant