[2017] KEELC 217 (KLR)
The court found that the plaintiff failed to prosecute its application for interlocutory injunction as neither party attended the scheduled hearing and there was no evidence of service upon the defendants. The absence of an affidavit of service indicated that the defendants may not have been aware of the hearing. As...
Source-derived case information.
- Citation
- [2017] KEELC 217 (KLR)
- Parties
- Plaintiff: Seventh Day Adventist Church East Africa Limited Registered Trustees suing through Ruungu SDA Church; Defendant: Phares Munyambu Rimberia; Defendant: Charles Kithine Rimberia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 288 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed for non-prosecution
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Injunctions, Land Ownership Disputes, Adjudication Sections, Trespass, Non Prosecution, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seventh Day Adventist Church East Africa Limited Registered Trustees suing through Ruungu SDA Church
Plaintiff
Phares Munyambu Rimberia
Defendant
Charles Kithine Rimberia
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to temporary injunctive orders restraining the defendants from dealing with Land Parcel No. 517 – KAROCHO ADJUDICATION SECTION.
- 2 Whether the application should be dismissed for non-prosecution due to lack of service and non-attendance by the parties.
- 3 Whether the plaintiff and defendants should comply with Order 11 of the Civil Procedure Rules before further proceedings.
Ratio Decidendi
The court found that the plaintiff failed to prosecute its application for interlocutory injunction as neither party attended the scheduled hearing and there was no evidence of service upon the defendants. The absence of an affidavit of service indicated that the defendants may not have been aware of the hearing. As a result, the court exercised its discretion to dismiss the application for non-prosecution. The court further directed both parties to comply with Order 11 of the Civil Procedure Rules within specified timelines to facilitate the progression of the main suit. No costs were awarded for the dismissed application.
Court Disposition
application dismissed for non-prosecution
Orders
- The application dated 22nd September, 2017 is dismissed for non-prosecution.
- No costs are awarded.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO 288 OF 2017
SEVENTH DAY ADVENTIST CHURCH
EAST AFRICA LIMITED REGISTERED TRUSTEES SUING
THROUGH RUUNGU SDA..................................CHURCHPLAINTIFF
VERSUS
PHARES MUNYAMBU RIMBERIA..........................1ST DEFENDANT
CHARLES KITHINE RIMBERIA.............................2ND DEFENDANT
RULING
1. This application is dated 22nd September, 2017 and seeks orders:
1. THAT this application be certified as urgent and be heard Ex-parte in the first instance.
2. THAT pending the hearing of this application inter-partes, this honourable court be pleased to issue temporary orders of injunction restraining the 1st and 2nd defendants, their agents, servants, employees ad whomsoever acting on their behalf or instructions from entering, extracting murram, constructing, cultivating, erecting any structures, trespassing, using, selling or in any manner whatsoever from dealing with Land Parcel No. 517 – KAROCHO ADJUDICATION SECTION.
3. THAT pending the hearing and determination of this suit, this honourable court be pleased to issue temporary orders of injunction restraining the 1st and 2nd defendants, their agents, servants, employees and whomsoever acting on their behalf or instructions from entering, constructing, cultivating, erecting any structures, trespassing, using, extracting murram, selling or in any manner whatsoever from dealing with Lnad Parcel NO. 517-KAROCHO ADJUDICATION SECTION.
4. THAT the costs of this application be provided for.
2. The application is buttressed by the affidavit of JACOB MBII MWATHI and has the following grounds:
a) THAT the plaintiff/applicant is the registered proprietor of Land ParcelNo. 517- KAROCHO ADJUDICATION SECTION.
b) THAT the plaintiff has been in occupation and use of the said land from the year 1977 to date on which they have established RUUNGU SDA Church, Dispensary and Educational institutions.
c) THAT on or about the 6th September, 2017 the 1st defendant with the permission and authority from the 2nd defendant commenced extraction of murram on the plaintiff’s Land Parcel No. Land Parcel No. 517 – KAROCHO ADJUDICATION SECTION without the plaintiff’s authority, permission and / or consent.
d) THAT the Defendants/Respondents have been trespassing on the plaintiff’s parcel of land.
e) THAT the Defendants have been making false claims against the plaintiff’s parcel of land and intend to have the Plaintiff’s parcel of land transferred illegally to them.
f) THAT the Applicant stands to suffer irreparable loss and damage.
3. On 27. 9.2017, when the application was heard exparte the court declined to issue interim injunctive orders. It noted that the plaintiff had not annexed proceedings concerning Marimanti Law Courts Civil Case No. 26 of 2014 alluded to in paragraph 11 of the supporting affidavit. The court felt that it was necessary to hear all the parties before making a decision concerning interim orders. Court ordered that the application be heard interpartes on 3. 10. 2016.
4. On 3. 10. 2016, the parties did not come to court. There is no affidavit of service showing that the defendants/respondents had been served. Perhaps, they were not aware that the application was to be heard interpartes on 3. 10. 2017.
5. This application merits dismissal for non-prosecution.
6. This application is dismissed.
7. No costs are awarded
8. The plaintiff is ordered to fully comply with order 11, CPR, within 14 days of today and the defendants are to do so within 14 days after receipt of the plaintiff’s compliance documents.
9. Parties will come to court for directions on 2nd November, 2017.
10. It is so ordered
Delivered in open court at Chuka this 3rd day of October, 2017 in the presence of:
CA: Ndegwa
Parties not present
P.M. NJOROGE
JUDGE