[2010] KEHC 645 (KLR)
The court found that the application to strike out the amended originating summons could not be sustained because the documents annexed regarding the previous suit (Thika CMCC No.492 of 2002) were largely illegible and did not include the proceedings. As a result, the court could not determine whether the issues in...
Source-derived case information.
- Citation
- [2010] KEHC 645 (KLR)
- Parties
- Plaintiff: Benson Ndungu Kariuki; Defendant: Kamau Kabenu & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 717 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Amended Originating Summons
- Outcome
- application to strike out amended originating summons disallowed
- Judges
- GG Okwengu
- Legal Topics
- Adverse Possession, Striking Out Pleadings, Res Judicata, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ndungu Kariuki
Plaintiff
Kamau Kabenu & Others
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Amended Originating Summons
Legal Issues
- 1 Whether the amended originating summons should be struck out as frivolous, vexatious, and an abuse of court process.
- 2 Whether the suit is barred by the existence and determination of Thika CMCC No.492 of 2002 over the same subject matter.
- 3 Whether the orders sought in the originating summons could be granted by a magistrate's court.
Ratio Decidendi
The court found that the application to strike out the amended originating summons could not be sustained because the documents annexed regarding the previous suit (Thika CMCC No.492 of 2002) were largely illegible and did not include the proceedings. As a result, the court could not determine whether the issues in the previous suit were substantially the same as those in the current suit, whether the parties were the same, or whether the issues had been determined. Furthermore, the orders sought in the amended originating summons—declaration of ownership by adverse possession—are not orders that could have been granted by the magistrate's court in the previous suit. Therefore, the...
Court Disposition
application to strike out amended originating summons disallowed
Orders
- The application dated 25th June, 2010 is disallowed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT NO.717 OF 2005
BENSON NDUNGU KARIUKI………PLAINTIFF/RESPONDENT
VERSUS
KAMAU KABENU & OTHERS…...DEFENDANTS/APPLICANTS
R U L I N G
1. By a chamber summons dated 25th June, 2010, the applicants who are the defendants in this suit, seek to have the respondent’s amended originating summons dated 25th May, 2010, struck out and the suit filed herein dismissed with costs. It is contended that the suit is frivolous and vexatious and a gross abuse of the court process. This is because there is another suit Thika CMCC No.492 of 2002 over the same subject matter i.e. Chania/Ngorongo/11 and that this suit has been determined. It is contended that the current suit is meant to circumvent the orders issued in theThika Court.
2. The application is opposed through an affidavit sworn by respondent Benson Ndungu Kariuki, who is the plaintiff in this suit. He contends that he was never a party in Thika CMCC No.492 of 2002. He is not therefore aware of the orders issued in that suit. The respondent maintains that he has been in occupation of the suit property for a period of 37 years. He is therefore entitled to be declared the owner of the suit property by adverse possession. He contends that the applicants while filing Succession Cause No.245 of 2001, concealed the fact that he i.e. the respondent was in occupation of the 3 acres of the suit property, and had by then been in possession for a period of 29 years. He therefore urges the court to dismiss the application.
3. I have considered the application and the submissions made before me. I find that although the pleadings in respect to Thika CMCC NO.492 of 2002 have been annexed to the affidavit of Kamau Kabenu, most of the documents annexed are illegible. Secondly, copies of the proceedings have not been annexed. It is not therefore possible for me to appreciate the matters which were substantially in issue in the Thika suit, whether they involved the same parties as the current suit and whether the issues have been substantially determined. Further, the respondent’s amended originating summons dated 25th May, 2010, seeks a declaration under Section 38 of the Limitations of Actions Act as read with Order XXXVI Rule 3D of the Civil Procedure Rules. The orders sought are not orders which can be granted by the magistrate’s court.
4. For the above reasons, I disallow the application dated 25th June, 2010. I order that costs shall be in the cause.
Dated and delivered this 3rd day of November, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the plaintiff/respondent absent but the plaintiff present
Ms Maneno H/B for Khaminwa for the defendants/applicants
B. Kosgei - Court clerk