Salama Beach Hotel Ltd v Ventaglio International SA, Arcuri Ignazio,D. Ssa Dal Moro Maddalena,Avv. De Cesari Patrizia,Issac Rodrot & Stefano Uccelli [2018] KEHC 5803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 8 OF 2018

SALAMA BEACH HOTEL LTD...............................PLAINTIFF

VERSUS

1.  VENTAGLIO INTERNATIONAL SA

2.  DR. ARCURI IGNAZIO

3.  D. SSA DAL MORO MADDALENA

4.  AVV. DE CESARI PATRIZIA

5.  ISSAC RODROT

6.  STEFANO UCCELLI...................................RESPONDENTS

D I R E C T I O N S

1. The plaint in this suit was filed on 23/2/2018 contemporaneously  with a Notice of Motion dated the same day and seeking injunctive orders against the defendants.  The basis and foundation of the suit and the application are that the plaintiff is the registered proprietor of the suit property and that the defendants are frustrating its operations.

2. On the same day, the file was placed before the judge under a Certificate of Urgency and interim temporary orders injunction were issued.  Since then several papers have been filed which necessitate courts directions by way of case management to enable the matter be progressed toward.  The papers are as follows:-

i) Undated Notice to act in person in the name of the plaintiff signed by the 5th defendant filed on 6/3/2018.

ii)Notice of withdrawal of suit dated 5th March 2018 signed by the 5th defendant and filed on 6/3/2018.

iii)Replying Affidavit by the 5th Defendant sworn by the 5th March 2018 defendant and filed on 23/2/2018.

iv)Notice of Motion dated 6/3/2018 by the 5th defendant filed the same day and seeking discharge of orders of 23/3/2018, transfer of the suit to Malindi High Court and stay of proceedings pending a determination of an application before Malindi High Court in HCC No. 118 of 2009 together with list of authorities.

v)Notice of Motion dated 5/3/2016 by the 6th defendant seeking to vacate  the orders of 23/2/2018 and transfers of the suit to Malindi.

vi)Replying Affidavit by 1st – 4th Defendants sworn on 20/3/2018.

vii)Notice of Motion dated 13/3/2018 by one Temple Point Resort Ltd seeking to be joined as an interested party.

viii) Consolidated Replying Affidavit by the Applicants by the 5th and 6th Defendants sworn on 14/3/2018.

3. When the parties appeared before the court on 7/3/2018. I got the impression and opinion that the matter is highly contested and evokes a lot of emotions.  It is therefore one that deserves to be heard and dealt with expeditiously and the parties made to know and take their next moves, if any.

4. Having considered all factors I consider appurtenant.  I give the following directions:

i) This matter shall be heard on 24/5/2018 and two preliminaryissues will be dealt with as follows:

ii) The second matter in my view[1] should be the Application for joinder by the interested party.  For that reason, let any party opposed to joinder file any replying papers within 7 days from today.  If however, there be no opposition let parties file a consent before the next hearing date and the interested party to file and serve any papers it desires to rely upon at the hearing of the Notice of Motion dated 23/2/2018.  I consider these two issues to take precedence so that the pendency of suit and participation of any necessary parties are in place before the substantive matter takes off to avoid disruptions once the substantive matter kicks off.

5. That would leave the plaintiffs’ application for injunction and the two applications by the 5th and 6th defendants.  I consider that the three application can be dealt with together and one decision render because if I find for the defendants then there would no prospects of also finding for the plaintiff.  Essentially, the two applications by 5th & 6th defendants can be treated as opposition to the plaintiffs Application and the consolidated Replying Affidavit treated as a supplementary affidavit.

6. To facilitate speedy disposal parties are at liberty to file and exchange any submissions within 21 days from today.

7. In order that the substratum of the litigation is sustained the interim order are extended upto the date of hearing.

8. Costs in the cause.

Dated and delivered at Mombasa this 22nd day of March 2018.

P.J.O. OTIENO

JUDGE

[1] The effect and input of Notice to Act in person and withdrawal.  Let parties address the court.