[2021] KEELC 2056 (KLR)
The court held that once the suit was withdrawn against the 47 defendants, they ceased to be parties to the proceedings. Any consent or application filed after such withdrawal, including the consent recorded on 19th March 2012 and the application dated 16th April 2012, was a nullity. The court further found that it...
Source-derived case information.
- Citation
- [2021] KEELC 2056 (KLR)
- Parties
- Plaintiff: Chesterton Properties Ltd; Defendant: Samson Muturia & Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 226 of 2020
- Procedural Posture
- Notice of Motion / Ruling on Application Post Withdrawal of Suit
- Outcome
- application dismissed with costs
- Judges
- CK Yano
- Legal Topics
- Withdrawal of Suit, Execution Proceedings, Jurisdiction of Court, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chesterton Properties Ltd
Plaintiff
Samson Muturia & Others
Defendant
Procedural Posture
Notice of Motion / Ruling on Application Post Withdrawal of Suit
Legal Issues
- 1 Whether the court had jurisdiction to entertain the application after withdrawal of the suit against the 47 defendants.
- 2 Whether the consent recorded after withdrawal of the suit was valid and capable of forming the basis for execution proceedings.
- 3 Whether the application dated 16th April 2012 had any legal bearing after withdrawal of the suit.
Ratio Decidendi
The court held that once the suit was withdrawn against the 47 defendants, they ceased to be parties to the proceedings. Any consent or application filed after such withdrawal, including the consent recorded on 19th March 2012 and the application dated 16th April 2012, was a nullity. The court further found that it had no jurisdiction to entertain execution proceedings under Section 34 of the Civil Procedure Act in the absence of a subsisting suit or valid order against the 47 defendants. Consequently, the application had no legal basis and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 16th April 2012 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC NO.226 OF 2010
CHESTERTON PROPERTIES LTD..........PLAINTIFF
-VERSUS-
SAMSON MUTURIA & OTHERS.........DEFENDANTS
RULING
1. Before this court for determination is the Notice of Motion application dated 16th April 2012. The said application was initially opposed on grounds of jurisdiction of this court to entertain the same and vide a ruling delivered on 31st July 2012 by F, Tuiyott J, the preliminary objection on the jurisdiction was overruled. Directions on hearing of the application were given and the application was canvassed by viva voce evidence, where the 47 defendants were represented by Irine Wekesa as PW1, Justus Muchiro Kiboi as PW2, John Paul Obonyo as PW3 and Father Gabriel Polan as PW4. The court bailiff equally testified but the plaintiff did not testify.
2. At the outset, it is important to lay some factual background of the matter. The plaintiff filed a plaint dated 5th July 2010. The plaintiff amended the plaint and a further amended plaint was filed on 28/6/2011. Vide a consent filed on 28/6/2011, a total of 91 defendants agreed to voluntarily vacate and handover vacant possession leaving a total of 47 defendants subject of this ruling.
3. On 28th July 2011, the plaintiff filed a notice of withdrawal of suit against the 47 remaining defendants. For the 47 defendants, the firm of Jengo & Associates on 5th August 2011 filed a document known as notice of objection to the consent dated 27th June 2010. On 28th August 2011 the firm of Jengo and Associates filed a request for judgment on costs arising from the Notice of Withdrawal dated 28th July 2011.
4. As earlier alluded to in respect to the jurisdiction of the court, the court in the ruling delivered on 31st July 2012 found that it had jurisdiction under Section 34 of the Civil Procedure Act. Although the application seeks determination of execution proceedings and whether the same were legal or not, and evidence was taken on the same, for all intents and purposes, save for the issues under Section 34, upon filing of the notice of withdrawal of the suit against the 47 defendants the suit actually died and the consent recorded on 19th March 2012, 8 months after the withdrawal of the suit was therefore a nullity.
5. It follows equally that whereas the court would have jurisdiction to entertain an application for execution under Section 34, the instant application having been based on the consent recorded on 19th March 2012, eight months after withdrawal of the suit against the 47 defendants is equally a nullity the 47 defendants were no longer parties to the suit. That upon withdrawal of the suit against the 47 defendants, there was nothing remaining that was capable of falling under Section 34 for purposes of execution and the court finds that the application dated 19th April 2012 having been filed 8 months after the withdrawal of the suit against the 47 defendants, as the defendants were no longer parties to the suit.
6. The upshot is that the application dated 16th April 2012 has no bearing and is dismissed with costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 21ST DAY OF JULY 2021
C.K. YANO
JUDGE
In the presence of:
Wangechi holding brief for Munyithya for plaintiff
No appearance for defendants
Court Assistant – Yumna
C. K. YANO
JUDGE