[2010] KEHC 359 (KLR)
The court found that there was no triable issue remaining in the suit as the defendant did not reside on the property and the plaintiff was in possession. The prayer for eviction was therefore moot, and the claim for a permanent injunction was unsupported since the defendant had proprietory rights as previously...
Source-derived case information.
- Citation
- [2010] KEHC 359 (KLR)
- Parties
- Plaintiff: Charity Wambogo Benson; Defendant: Lois Gicuku Kibaru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 79 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal Order and Reinstate Suit
- Outcome
- application dismissed with costs to the defendant/respondent
- Judges
- J Karanja
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Eviction Proceedings, Permanent Injunction, Trespass, Proprietory Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charity Wambogo Benson
Plaintiff
Lois Gicuku Kibaru
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal Order and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order dated 12.05.2010 and reinstate the suit.
- 2 Whether there exists any triable issue warranting reinstatement of the suit.
- 3 Whether the plaintiff sufficiently explained non-compliance with the court order on payment of thrown away costs.
Ratio Decidendi
The court found that there was no triable issue remaining in the suit as the defendant did not reside on the property and the plaintiff was in possession. The prayer for eviction was therefore moot, and the claim for a permanent injunction was unsupported since the defendant had proprietory rights as previously determined by another judge. Additionally, the plaintiff failed to comply with the court order to pay thrown away costs and did not provide a sufficient explanation for this failure. Consequently, the application to set aside the dismissal order and reinstate the suit lacked merit and was dismissed.
Court Disposition
application dismissed with costs to the defendant/respondent
Orders
- The application dated 20.5.2010 is dismissed with costs to the defendant/respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL SUIT NO. 79 OF 2007
CHARITY WAMBOGO BENSON.......................................................................................PLAINTIFF
VERSUS
LOIS GICUKU KIBARU.............................................................................................DEFENDANT
R U L I N G
The defendant herein applied to this court for dismissal of the plaintiff’s suit for want of prosecution. When the application came up for hearing on 15. 07. 09 both counsel recorded a consent to the effect that the application be withdrawn but the plaintiff pays thrown away costs of 5,000 Sh. The matter was marked SOG but the court urged counsel for the plaintiff to move the court with dispatch. A hearing date was taken by consent of both counsel on 13. 11. 09. The suit was fixed for hearing on12. 5.2010. When the matter came up on that date, counsel for the plaintiff was absent. Mr. Kathungu for defendant informed the court that the thrown away costs of 5,000 Sh. had not yet been paid. The court therefore dismissed the suit.
The plaintiff through Utuku Advocate then filed the present application under Section 3A of the Civil Procedure Act urging the court to set aside the “dismal order” dated 12. 05. 2010 and reinstate the suit. As rightly submitted by counsel for the defendant/respondent the “dismal” order is not attached and I have no idea why counsel would refer to a valid court order as a “dismal” order. I don’t think my orders of 12. 05. 2010 were “dismal”.
Be that as it may, I have considered the application along with the rival Affidavits. Counsel for the Applicant maintains that the suit should be reinstated so that the same can be heard and decided on merit. Counsel for the defendant on the other hand maintains that there is nothing to be heard. The suit is for eviction of the defendant from the suit premises yet she does not even live on the plot. The defendant herself deposed that it is the plaintiff who is in possession of the said property. That fact has not been denied by the plaintiff so how can be court asked to evict a person who is not even on the plot in question. I have perused the plaint. I note that there is another prayer for a permanent injunction against the defendant restraining her from trespassing on the said plot. I have seen a Ruling by Judge Khaminwa dated 14. 02. 08 in which she says that the defendant does have proprietory rights on the said plot – so the issue of trespass does not arise either. I agree with counsel for the defendant therefore that reinstating the suit for trial will be an exercise in futility as there is nothing to try. There is in my view no triable issue in this matter. I also find that the failure to comply with the court order on payment of the money was not sufficiently explained. I have no reason to reinstate this suit. The application dated 20. 5.2010 lacks merit. The same is hereby dismissed with costs to the Defendant/Respondent.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 6th day of December 2010
In presence of:-Mr. Utuku for Applicant & Applicant
N/A for Respondent.