[2015] KEELC 231 (KLR)
The court determined that the application for interlocutory injunction had been pending for an unreasonably long period without substantive progress, and that the interim orders issued earlier remained in force without any evidence of activity or violation on the ground. Recognizing the nature of the dispute as a...
Source-derived case information.
- Citation
- [2015] KEELC 231 (KLR)
- Parties
- Plaintiff: Swaleh Hussen Sherman Swaleh (suing on his behalf and on behalf of Awadh Saleh and Said Saleh Said as their Attorney); Defendant: Kenya Rural Roads Authority Mombasa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 115 of 2013
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Application compromised; status quo to be maintained pending surveyor's report.
- Judges
- AA Omollo
- Legal Topics
- Interlocutory Injunctions, Boundary Disputes, Status Quo Orders, Survey Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swaleh Hussen Sherman Swaleh (suing on his behalf and on behalf of Awadh Saleh and Said Saleh Said as their Attorney)
Plaintiff
Kenya Rural Roads Authority Mombasa
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to temporary injunctive relief restraining the defendant from interfering with the specified plots pending determination of the suit.
- 2 Whether the status quo should be maintained pending the outcome of a survey to determine boundary encroachment.
Ratio Decidendi
The court determined that the application for interlocutory injunction had been pending for an unreasonably long period without substantive progress, and that the interim orders issued earlier remained in force without any evidence of activity or violation on the ground. Recognizing the nature of the dispute as a boundary issue, the court found it appropriate to maintain the status quo established by the interim orders and to expedite resolution by directing a county surveyor to visit the disputed plots, establish beacons, and report on any encroachment by the defendant. The court exercised its discretion to compromise the application on these terms to save time and facilitate a just and...
Court Disposition
Application compromised; status quo to be maintained pending surveyor's report.
Orders
- The present application is determined as compromised; the status quo obtaining as a result of the interim orders issued is to be maintained.
- The county surveyor – Mombasa, in the presence of the parties and their witnesses if need be, shall visit the disputed plots Nos. Mombasa Block XIV/147, 162, 177, 192, and 206 to establish their beacons and record whether the defendant has encroached on them.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC CIVIL SUIT NO. 115 OF 2013
SWALEH HUSSEN SHERMAN SWALEH suing on his behalf and on behalf of AWADH SALEH and SAID SALEH SAID as their Attorney …..............PLAINTIFF
VERSUS
KENYA RURAL ROADS AUTHORITY MOMBASA…...................... DEFENDANT
RULING
The plaintiff/applicant moved the Court under Order 40 and Order 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking temporary orders of injunction to restrain the defendants and or its employees from dealing, constructing, selling, wasting, damaging, intruding, trespassing and or interfering with plots Nos. Mombasa Block XIV/147, XIV/162, 177, 192 and 206 pending hearing and determination of the suit. The application was filed on 30th May, 2013 and obtained ex parte orders on the same date.
From the record, for one reason or another, the application did not proceed to hearing. On 26th August, 2013 parties agreed to dispose of the application by way of written submissions and have the interim orders extended which indeed were extended. The matter came up in Court on 22ndd April, 2014 by which time none of the parties had not filed the written submissions. The Court made a note of this when Mukunya Judge stated that eight months later the parties had not filed their submissions and directed the application to proceed by way of viva voce evidence. On 11th April, 2014. On this date, the parties were absent and the matter stood over generally. The submissions on record shows filing of submissions by respondent on 17th February, 2014 and by the applicant on 15th May, 2014.
This application has been in Court for unnecessarily too long. The nature of the prayers sought in the plaint makes it a boundary dispute. Since the interim orders issued on 30th May, 2013 are still in force as when they were extended on 26th August, 2013, there was no time limit indicated. None of the parties have stated there has been any activity on the ground. To save on time, instead of going to the merits of this application or otherwise, I do make an order that the present application be determined as compromised in terms that the status quo obtaining as a result of the interim orders issued be maintained. In order to fast track the determination of the case, this Court suo moto direct that the county surveyor – Mombasa in the presence of the parties and their witnesses if need be do visit the disputed plots Nos. Mombasa Block XIV/147, 162, 177, 192 and 206 with a view to establishing their beacons and record whether the defendant has encroached on them or not. The cost of the survey if any to be shared by both parties equally. The surveyor to visit and file his report within 60 days of service of this order. The matter be mentioned after sixty days to confirm if the report is filed and for further orders.
Ruling signed, dated and delivered at Mombasa this 24thday of July, 2015.
…..........................
A. OMOLLO
JUDGE
In the presence of:-
Learned Counsel for the Plaintiff/Applicant Mukan
Learned Counsel for the Defendant/Respondent Mwangi
Court clerk Jescah