[2019] KEELC 811 (KLR)
The court found that the plaintiff had previously filed an application for a temporary injunction in respect of the same property and issues, which was dismissed by the court in 2014. The present application, seeking to maintain status quo, was in substance an attempt to obtain the same injunctive relief that had...
Source-derived case information.
- Citation
- [2019] KEELC 811 (KLR)
- Parties
- Plaintiff: Virginia Kathambi Maingi; Defendant: Nicholas Mwatika Mulei; Defendant: Co-operative Bank of Kenya Ltd; Defendant: Commissioner of Lands
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 147 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Status Quo Orders, Proprietary Rights, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Virginia Kathambi Maingi
Plaintiff
Nicholas Mwatika Mulei
Defendant
Co-operative Bank of Kenya Ltd
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff is entitled to an order maintaining status quo over L.R. No. 337/935 pending determination of the suit.
- 2 Whether the application for status quo is res judicata in light of a previous dismissed injunction application.
Ratio Decidendi
The court found that the plaintiff had previously filed an application for a temporary injunction in respect of the same property and issues, which was dismissed by the court in 2014. The present application, seeking to maintain status quo, was in substance an attempt to obtain the same injunctive relief that had already been denied. The court held that it could not grant an order of status quo as it would amount to revisiting a matter already determined, thus offending the doctrine of res judicata. Consequently, the application was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 9th April, 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 147 OF 2018
VIRGINIA KATHAMBI MAINGI ……………………………..PLAINTIFF
VERSUS
NICHOLAS MWATIKA MULEI…………………………1ST DEFENDANT
CO-OPERATIVE BANK OF KENYA LTD……………2ND DEFENDANT
COMMISSIONER OF LANDS………………………….3RD DEFENDANT
RULING
1. In the Notice of Motion dated 9th April, 2019, the Plaintiff is seeking for the following orders:
a.That status quo ante, the filing of this Application, be maintained pending the hearing and determination of the suit.
b.That the costs of this Application be provided for.
2. The Application is supported by the Affidavit of the Plaintiff who has deponed that he is the registered proprietor of land known as L.R. No. 337/935, Mavoko Municipality; that on 1st April, 2019, the 1st Defendant embarked on constructing a permanent wall on the suit property and that the said 1st Defendant intends to steal a match from him.
3. The Plaintiff finally averred that in the absence of conservatory orders, he stands to suffer irreparable harm and that the Defendants’ act of fencing the suit property is geared at alienating the suit property.
4. In response, the 1st Defendant’s Attorney deponed that he received a letter from the OCS Athi River, instructing him to fence the suit property because it had become a security concern in the area; that the land is adjacent to the Mavoko Chief’s office; that the Plaintiff hired goons who destroyed the perimeter fence and that an Application for injunction filed by the Plaintiff was dismissed by the court on 2nd My, 2014. The 1st Defendant’s Attorney finally deponed that the fence was erected way back in November, 2015 and that the Application should be dismissed.
5. Both the Plaintiff and the 1st Defendant’s advocate filed submissions which I have considered.
6. This suit was filed by the Plaintiff in Nairobi in the year 2013. The Plaintiff filed a Notice of Motion dated 5th February, 2013 seeking for temporary injunction restraining the Defendants from trespassing, disposing off or in any other manner interfering with parcel of land known as L.R. No. 337/935 located in Mavoko. Upon hearing the Application, the court dismissed the Application.
7. Having filed the Notice of Motion dated 5th February, 2013, the Plaintiff cannot now file an Application whose effect is to restrain the 1st Defendant from dealing with the suit property in any manner he deems fit. The grant of an order of status quo will amount to an injunction, which has since been determined by this court.
8. In view of the Ruling of the court dated 2nd May, 2014, I am unable to grant the prayers sought in the Notice of Motion dated 9th April, 2019. The Application is therefore dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 8TH DAY OF NOVEMBER, 2019.
O.A. ANGOTE
JUDGE