[2009] KEHC 2154 (KLR)
The court found that the Plaintiff's Chamber Summons was fundamentally flawed as it sought orders not lawfully grantable under the provisions cited, specifically Order XXXVIII Rule 1(b) of the Civil Procedure Rules. The Plaintiff failed to demonstrate that the Defendant, a body corporate, was about to leave the...
Source-derived case information.
- Citation
- [2009] KEHC 2154 (KLR)
- Parties
- Plaintiff: Edward Wachiuri Njoroge; Defendant: Kenya Planters Co-operative Union Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 296 of 2009
- Procedural Posture
- Civil Case / Ruling on Chamber Summons
- Outcome
- application dismissed with costs to the defendant
- Judges
- JM Khamoni
- Legal Topics
- Interlocutory Applications, Injunctions, Prohibitory Orders, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Wachiuri Njoroge
Plaintiff
Kenya Planters Co-operative Union Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons
Legal Issues
- 1 Whether the Chamber Summons dated 4th June 2006 sought reliefs lawfully grantable under the cited provisions of the Civil Procedure Rules.
- 2 Whether the Plaintiff established grounds for the orders sought under Order XXXVIII Rule 1(b) of the Civil Procedure Rules.
- 3 Whether the Plaintiff demonstrated that the Defendant was about to leave the jurisdiction to obstruct or delay execution of a decree.
Ratio Decidendi
The court found that the Plaintiff's Chamber Summons was fundamentally flawed as it sought orders not lawfully grantable under the provisions cited, specifically Order XXXVIII Rule 1(b) of the Civil Procedure Rules. The Plaintiff failed to demonstrate that the Defendant, a body corporate, was about to leave the jurisdiction in a manner that would obstruct or delay execution of any decree. Further, the Plaintiff did not provide official documentation proving title to the property in question, which was fatal to the application. The court emphasized that parties must not confuse the legal basis for their applications or rely on vague statutory references when specific provisions exist....
Court Disposition
application dismissed with costs to the defendant
Orders
- The Plaintiff's Chamber Summons dated 4th June 2006 is dismissed with costs to the Defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 296 of 2009
EDWARD WACHIURI NJOROGE.................................... PLAINTIFF
VERSUS
KENYA PLANTERS CO-OPERATIVE UNION LTD..........DEFENDANT
RULING
Having carefully considered what was brought before me by parties in this suit in connection with the Plaintiff’s Chamber Summons dated 4th June 2006, the said Chamber Summons be and is hereby dismissed with costs to the Defendant/Respondent for the following reasons:-
Firstly, the parties addressed me in their submissions as if the Chamber Summons aforesaid was an application for an injunction under Order XXIX of the Civil Procedure Rules when that application is not for an injunction.
Secondly, the parties did not appreciate the difference between a prohibitory order purported prayed for in prayer c) and an injunction.
Thirdly the parties did not care to know that an application under Order XXX VIII is different from an application under Order XXXIX of the Civil Procedure Rules and that once there are clear, and specific provisions of the law governing an issue, a party is not entitled to confuse the matter by bringing in section 3A of the Civil procedure Act and or reverting to vague terms like
“and all other enabling sections of the law.”
Fourthly though the Chamber Summons is said brought under Order XXXVIII Rule 1 (b) of the Civil Procedure Rules, no attempt has been made to show that, the Defendant, a body corporate established under the Co-operatives Act and the Companies Act in this Country, is about to leave this country under circumstances affording reasonable probability that the Plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the Defendant in this suit.
Fifthly, neither an injunction nor a prohibitory order or attachment is provided for under Order XXXIII Rule 1 (b) of the Civil Procedure Rules and therefore Chamber Summons dated 4th June 2009 is praying for orders not lawfully grantable under those provisions of the law.
Sixthly there may be no dispute in this suit as to who owns L.R. No.209/4361/22 – 26 but failure by the Plaintiff to exhibit any official document proving the holder of title to that property and revealing the statute under which that title is held is fatal to the Plaintiff’s prayers in the Chamber Summons.
There may be more reasons for dismissing this Chamber Summons but presently the aforementioned reasons are sufficient for that purpose.
Dated this 17th day of July 2009.
J.M. KHAMONI
JUDGE
Mr. Kamau Kinga for the Plaintiff/Applicant
Mr. Moya for the Defendant/Respondent