[1997] KEHC 54 (KLR)
The court found that the orders made in High Court Civil Appeal No. 93 of 1993 were specific and did not address the valuation of goods, damages for assault, or loss of user. The applicant's attempt to seek these additional reliefs through a post-judgment application was procedurally improper. The correct course of...
Source-derived case information.
- Citation
- [1997] KEHC 54 (KLR)
- Parties
- Applicant: Catherine Njeri Ng'ang'a; Respondent: James Mungai Karanja; Defendant: Gladsom Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 871 of 1997
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application
- Outcome
- application dismissed with costs
- Legal Topics
- Execution of Judgments, Assessment of Damages, Loss of User, Assault Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Njeri Ng'ang'a
Applicant
James Mungai Karanja
Respondent
Gladsom Auctioneers
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the applicant is entitled to assessment and compensation for destroyed or missing goods after execution of a court order.
- 2 Whether damages for alleged assault by auctioneers and loss of user can be granted in the current application.
- 3 Whether the procedure adopted by the applicant is proper for the reliefs sought.
Ratio Decidendi
The court found that the orders made in High Court Civil Appeal No. 93 of 1993 were specific and did not address the valuation of goods, damages for assault, or loss of user. The applicant's attempt to seek these additional reliefs through a post-judgment application was procedurally improper. The correct course of action for the applicant would be to file a separate suit for the reliefs sought, subject to the law of limitation. The application was therefore dismissed as misplaced, with costs awarded to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APP. NO. 871 OF 1997
CATHERINE NJERI NG’ANGA..........................................PLAINTIFF
-versus-
JAMES MUNGAI KARANJA.................................1ST RESPONDENT
GLADSOM AUCTIONEERS..................................2ND DEFENDANT
R U L I N G
The High Court (Dugdale J.) in High Court Civil Appeal No. 93 of 1993 between Catherine Njeri Ng’ang’a and James Karanja upheld the appeal filed by Catherine Njeri Ng’ang’a and set aside the ruling of the lower court.
It was further ordered that costs of appeal and costs of the lower court be paid by the respondent landlord to the appellant tenant, that the landlord do pay the auctioneers charges within 30 days from the date of the judgment; that the court Broker/auctioneer do release the distressed goods the appellant forthwith. The judgment was given on 15th November, 1993 and order was issued on 25th November, 1993.
On 26th September, 1996 the applicant herein who was the appellant in the High court appeal No. 93 of 1993 filed an application by way of Notice of motion under civil application No. 871 of 1996 wherein she alleged that her goods have never been returned as ordered by the High Court on 15th November, 1993 and that the same goods are destroyed and/or are missing. She has therefore asked the court in his application to value and assess the goods so destroyed and/or damaged and the value be met by the respondents she has also asked for damages to be assessed for the beating she received from the auctioneers who acted on instructions of the landlord and the same be met by the respondent.
She has also asked for loss of user of the distressed goods also to be assessed by the court.
The application has been opposed and grounds of objection have been filed. Both respondents say they have complied with the High Court order in Civil appeal No. 93 of 1993.
Both advocates for the respondents are on record having challenged the procedure which the applicant has followed. Following that observation, the applicant filed yet another application by way of Chamber Summons seeking an order that her application dated 20/9/96 (Misc. Appn. 871 or 1996) be treated as having been filed in High Court Civil Appeal No. 93 of 1993.
The orders made under High Court Civil Appeal No. 93 of 1993 were specific. They did not address the subject of the value of goods, damages for assault and loss of user. I have noted that the applicant appears in person but she has understood the proceedings all along as she addressed the court on her application. The court does not sit on an advisory position but the advocates appearing for the respondents repeatedly stated and I believe in good faith, that the right cause of action is for the applicant to file a suit and more the court for the orders she seeks in this application. This of course is subject to the law of limitation.
On my part I find the application misplaced and proceed to dismiss the same with costs.
It is so ordered.
Dated and delivered at Nairobi this 30th day of April, 1997.
A. MBOGHOLI MSAGHA
JUDGE