[2006] KEHC 2879 (KLR)
The court found that the order made on 31st July 2002, which directed the release of Shs.70,000 to the plaintiff, was irregular because it was made during a mention and without any application, while the earlier order of 18th July 2002 in favour of the 1st defendant was still in force and had not been set aside or...
Source-derived case information.
- Citation
- [2006] KEHC 2879 (KLR)
- Parties
- Plaintiff: Alfred Sambu Kiboi; Defendant: Anne Mwok-Handa; Defendant: Haki Traders
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1098 of 2002
- Procedural Posture
- Civil Case / Ruling on Chamber Summons
- Outcome
- application allowed
- Judges
- JL Osiemo
- Legal Topics
- Interlocutory Orders, Release of Funds, Court Powers, Irregular Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Sambu Kiboi
Plaintiff
Anne Mwok-Handa
Defendant
Haki Traders
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons
Legal Issues
- 1 Whether the court can issue a substantive order during a mention without a formal application.
- 2 Whether the order made on 31st July 2002 releasing Shs.70,000 to the plaintiff was irregular in light of the earlier order of 18th July 2002.
Ratio Decidendi
The court found that the order made on 31st July 2002, which directed the release of Shs.70,000 to the plaintiff, was irregular because it was made during a mention and without any application, while the earlier order of 18th July 2002 in favour of the 1st defendant was still in force and had not been set aside or reviewed. The court held that it is improper for a substantive order to be made in such circumstances and allowed the application, ordering that the money be released to the 1st defendant as originally directed.
Court Disposition
application allowed
Orders
- The release of Shs.70,000 to the plaintiff is stopped.
- Shs.70,000 deposited in court by the plaintiff is to be released to the 1st defendant as per the order of 18th July 2002.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
CIVIL CASE 1098 OF 2002
ALFRED SAMBU KIBOI………………………..……..……………PLAINTIFF
VERSUS
ANNE MWOK-HANDA…………………………….…………1ST DEFENDANT
HAKI TRADERS…..…………………………………………2ND DEFENDANT
RULING
The applicant by way of this Chamber Summons expressed to be brought under O.XXXIX Rule 2 2A of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeks orders to stop the release of Shs.70,000/= deposited in court by the plaintiff and that the said Shs.70,000/= be released to the 1st defendant as per the order of Mbito J made on 18th July 2002.
The application is premised on the ground that on 18th July 2002 Mbito J found in favour of the 1st defendant that the plaintiff was owing the 1st defendant Shs.140,000/= and ordered that Shs.70,000/= deposited in court by the plaintiff was to forthwith be released to the 1st defendant and the plaintiff was also further ordered to pay the 1st defendant another Shs.70,000/= upon which his attached goods were to be released to him. The said order was never set aside or reviewed.
On the 31st July 2002, the same judge without any application, the file was placed before him for mention but proceeded to make another order that the said deposit of Shs.70,000/= be released to the plaintiff. This order was made while the earlier one made by the same judge was in force. Mrs. Nanjero counsel for the 1st defendant urged this court to issue an order stopping the released of the money to the plaintiff and order that the money be released to the 1st defendant. counsel has annexed extracted order for both the 18th July 2002 and 31st July 2002 and on perusal of both orders, it emerges that the second order made on 31st July 2002 to release the money to the plaintiff was made during a mention and without any application. It is irregular for the court to make a substantive order during a mention and without any application. I concur with counsel for the 1st defendant and allow the application in terms of prayer 3, 4 and 5 of the Chamber Summons dated 6th august 2005.
Orders accordingly.
Dated and delivered at Nairobi this 16th day of February 2006.
J.L.A. OSIEMO
JUDGE