[2008] KEHC 1066 (KLR)
The application for summary judgment was incompetent because several defendants had entered appearance and filed a defence, making summary judgment unavailable under Order 35. Furthermore, the plaintiff failed to challenge the defendants' claim that the current registered owner was Indeyo Ole Yiaile and did not...
Source-derived case information.
- Citation
- [2008] KEHC 1066 (KLR)
- Parties
- Plaintiff: Anthony Kipkoske Kimetto; Defendant: Dickson A. Rono; Defendant: David A. Rono; Defendant: Veronica Sigiro; Defendant: Paul Chebusit; Defendant: Paul A. Sura; Defendant: Philip A. Sigilai; Defendant: Daniel A. Sigilai; Defendant: David A. Sigilai; Defendant: Benjamin A. Sigilai; Defendant: Mrs Obot Nora Seron; Defendant: Kiptangus A. Busienei; Defendant: Samuel A. Towet; Defendant: Wilson A. Towet; Defendant: Robert Kiprotich; Defendant: Thomas Maiwa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 78 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment
- Outcome
- application struck out
- Judges
- DK Maraga
- Legal Topics
- Summary Judgment, Recovery of Land, Appearance and Defence, Burden of Proof, Title Verification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Kipkoske Kimetto
Plaintiff
Dickson A. Rono
Defendant
David A. Rono
Defendant
Veronica Sigiro
Defendant
Paul Chebusit
Defendant
Paul A. Sura
Defendant
Philip A. Sigilai
Defendant
Daniel A. Sigilai
Defendant
David A. Sigilai
Defendant
Benjamin A. Sigilai
Defendant
Mrs Obot Nora Seron
Defendant
Kiptangus A. Busienei
Defendant
Samuel A. Towet
Defendant
Wilson A. Towet
Defendant
Robert Kiprotich
Defendant
Thomas Maiwa
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to summary judgment for recovery of land under Order 35 of the Civil Procedure Rules.
- 2 Whether the application is competent where some defendants have entered appearance and filed a defence.
- 3 Whether the plaintiff has established ownership of the suit land.
Ratio Decidendi
The application for summary judgment was incompetent because several defendants had entered appearance and filed a defence, making summary judgment unavailable under Order 35. Furthermore, the plaintiff failed to challenge the defendants' claim that the current registered owner was Indeyo Ole Yiaile and did not provide up-to-date evidence of his own ownership. The court therefore struck out the application as both procedurally and substantively lacking merit.
Court Disposition
application struck out
Orders
- The plaintiff's application for summary judgment is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 78 of 2007
HONOURABLE ANTHONY KIPKOSKE KIMETTO….......…PLAINTIFF
VERSUS
DICKSON A. RONO……….…………………….……..1ST DEFENDANT
DAVID A. RONO…………..…………………...……….2ND DEFENDANT
VERONICA SIGIRO……………..……………………..3RD DEFENDANT
PAUL CHEBUSIT………………...……………………4TH DEFENDANT
PAUL A. SURA…………………………………………5TH DEFENDANT
PHILIP A. SIGILAI………………...……..……………..6TH DEFENDANT
DANIEL A. SIGILAI…………...………………………..7TH DEFENDANT
DAVID A. SIGILAI………………...…………………….8TH DEFENDANT
BENJAMIN A. SIGILAI……..………………………….9TH DEFENDANT
MRS OBOT NORA SERON……………...………….10TH DEFENDANT
KIPTANGUS A. BUSIENEI………………………….11TH DEFENDANT
SAMUEL A. TOWET……….….………..…………….12TH DEFENDANT
WILSON A. TOWET……………………..…………..13TH DEFENDANT
ROBERT KIPROTICH………………………..……..14TH DEFENDANT
THOMAS MAIWA…………..………………..……….15TH DEFENDANT
RULING
By his notice of motion dated 13th July 2007, the plaintiff seeks under Order 35 Rules 1(1)(b), 2 and 3 of the Civil Procedure Rules as well as Section 3A of the Civil Procedure Act and all enabling provisions of the law summary judgment as prayed in the plaint. Order 35 Rule 1(1)(b) of the Civil Procedure Rules, in as far as it is relevant to this matter, provides that “In all suits where a plaintiff seeks judgment for… the recovery of land, with or without a claim for mesne profits… where the defendant has entered appearance the plaintiff may apply for judgment… for recovery of the land.”
From both the application itself and the supporting affidavit, it is clear that the application is premised on the ground that the defendants though served have not entered appearance or filed a defence. In view of the above provision, the application is clearly incompetent and is for striking out.
On its merits the application also stood no chance of success as contrary to Mr. Mongeri’s contention the 3rd, 6th, 7th, 8th, 9th and 10th defendants entered appearance on 12th June 2007 and filed a defence on 27th June 2007. Those defendants claim in their defence that they bought portions of the suit piece of land from one Indeyo Ole Yiaile, the current registered owner. The plaintiff never referred to that defence at all. So it stands unchallenged. He also never exhibited a certificate of official search to show whether or not he is the current registered owner of the suit piece of land. The copy of the title he exhibited was issued on 16th December 1988. I am therefore unable to know whether or not the defendants’ contention that the current registered owner is Ndeyo Ole Yiaile is true.
For these reasons, thought the application is not opposed, as I have said it is incompetent and I hereby strike it out with no order as to costs.
DATED and delivered at Nakuru this 3rd day of October, 2008.
D. K. MARAGA
JUDGE