Rea Hotel & Restaurant Limited v Astoria Park Limited

III/1035/1036) at all and has no business executing a judgment against it or parties residing thereon; c. That the honourable court do grant any relief it deems t and expedient to meet the ends of justice; d. That costs of the application be provided for. 3. The application is premised on the grounds enumerated on the face thereof and supported by an adavit sworn on 3/9/2024 by Alfonse Onditi Onchieku, said to be the Plainti’s director, who stated that the Plainti hotel is situate on the land known as L.R No. MN/III/500 (Now MN/III/1035/1036); that the Defendant obtained judgment (annexed as Exh “AOO1”) in respect of plot L.R No. 1611/15/III/MN (CR No. 22740) against some third parties; that vide a letter dated 4/3/2024, the Defendant oered to sell the property subject of the said judgment to the Plainti ostensibly as squatters thereon; that letter resulted to several correspondences between the parties and at one point the Defendant made a draft sale agreement (Exh “A005”). As part of due diligence, the Plainti appointed a surveyor to determine whether L.R No. MN/III/500 (Now MN/ III/1035/1036) corresponds with L.R No. 1611/15/III/MN CR No. 22740; that the surveyors observed that the hotel measures approximately 0.1 Ha, located on L.R No. MN/III/500 (Now MN/ III/1035/1036), and that L.R No. MN/III/1611 is approximately three blocks away from the former. The deponent stated that the Defendant has continued to exert pressure on the Plainti by using the police force, thus making the demolition real. 4. Since the preliminary objection was disposed of as stated herein before, this court will not restate its contents but will refer to the contents of the respondent’s replying adavit sworn on 24/9/2024 by Mohamed Wanyoike. 5. In the replying adavit, the said Mohamed deposed that the Defendant is the registered proprietor of the land known as 1611 (Original No. 495/15/Section III Mainland North) containing by measurement 1.121 Ha or thereabouts. He stated that the Defendant obtained judgment against some third parties over the said land on 22/2/2018 and a decree issued on 26/3/2018. He added that the Plainti was neither a party in that suit, nor a party to the agreement exhibited as “A005”. Owing to the aforesaid, the deponent averred that the Plainti lacks locus standi to present the application and suit as a whole. He thus urged the court to dismiss the application and strike out suit. Plainti ’s Submissions. 6. Counsel for the Plainti did not le submissions on the Motion. Defendant’s Submissions Dated 15/5/2025. 7. On the issue of whether a prima facie case has been established, it was counsel’s submissions are that the Applicant has clearly stated that he owns Plot No. L.R. No MN/III/500 (Now MN/III/1035/036) and that the said plot is approximately 3 blocks away from the Respondent's property Plot No. 1611 (original No. 495/15/Section III) Mainland North; that by admitting to his property being separate from the Respondent's property, the Applicant has not demonstrated that there is a clear and unmistakable right that is being infringed by the Respondent and that the respondent thus ought to be restrained. There is therefore no prima facie case established according to it. Giella -vs- Casman Brown & Co ltd (1973) EA 358 and Mrao Ltd -v- First American Bank of Kenya Ltd (2003) eKLR were cited. It was also submitted that the applicant having established that the its property is entirely distinct from that of the Respondent and hence there is no cause of action against the Respondent, the Applicant has not demonstrated the irreparable loss it has suered, or which it stands to suer if the orders for https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18704/eng@2025-05-22 2

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temporary injunction are not granted.Lastly it was submitted that the balance of convenience in this case lies in favor of the Respondent who has demonstrated, by way of certicate of title and Judgment, ownership of Subdivision No. 1611 (Original No. 495/15) Section III Mainland North, which is separate and distinct from the suit property. Analysis and Determination 8. The following issues thus arise for determination: i. Whether an injunction should issue against the defendant pending the hearing and determination of the suit; ii. Whether a declaration ought to issue declaring that Plot No. L.R No. MN/III/500 (now MN/ III/1035/1036) and Plot No. MN/III/1611 are distinct from one another at this interlocutory stage; iii. Who ought to meet the costs of the application. 9. In addressing the rst issue, the court notes that there is no defence on record. There are therefore no denials yet made in respect to the statements in the plaint. Also the defendant’s replying adavit has little extra to add to the issue of locus standi which has now been disposed of. The only additional material that this court gathers from that replying adavit is that the defendant is the registered proprietor of Plot No. MN/III/1611. The deponent to that adavit has attached a copy of the title document with entry no 6 purportedly showing that the said plot was transferred to it on 10/11/2006. Its intent was to evict third party trespassers in that plot was expressed in a suit in which a decree was issued and in which the present plainti was not named as a party. Plot No. L.R. No MN/III/500 (Now MN/III/1035/036) claimed by the present plainti was not dealt with in the judgment and decree mentioned and attached by the defendant to its replying adavit. It is therefore a conundrum needing investigation by the court as to why the defendant would make demands upon the plainti on the basis of that judgment. 10. What the foregoing implies is that if the defendant has now set its sights on the plainti’s property for demolition in accordance with its decree in Malindi Civil Suit No 15 Of 2016, as complained of in the plaint while admitting in the replying adavit that it had never joined the plainti thereto, it risks demolishing the plainti’s property without a lawful court order. Consequently, as the issue of locus standi has been disposed of in favour of the plainti, it behoves this court to hear the case raised by the plainti by way of taking evidence of the parties in order to substantively resolve the dispute. 11. The upshot of the foregoing is that this court nds that the plainti has advanced a prima facie case and also that if the hotel it has on plot no L.R No. MN/III/500 (now MN/III/1035/1036) is demolished, or the property on that plot wasted in any other manner by the defendant, then the plainti would suer loss that may be not be compensable by way of damages. 12. Also, this is a matter that ought to be heard substantively before prayer no 2 of the application is issued since it is likely to dispose of the entire claim by the plainti which is unhealthy for the administration of justice as evidence to determine it has not been taken; hence that prayer cannot be issued at the interlocutory stage. As to costs, they can be in the cause. 13. The upshot is the application dated 3/9/2024 is allowed in terms of prayer no 1 pending the hearing and determination of the present suit. The costs of the application shall be in the cause. Parties shall le and exchange their trial bundles without fail, the plainti complying thus within the rst 21 days from the date of this order and the defendant within 21 days from the date of expiry of the period granted to the plainti. In the light of the time expended on the preliminary objection parties shall keep https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18704/eng@2025-05-22 3

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strictly to the timelines issued herein. This matter shall be mentioned on 18/9/2025 for conrmation of compliance and issuance of a mutually convenient hearing date, of which this ruling is deemed sucient notice. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 22ND DAY OF MAY 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18704/eng@2025-05-22 4

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