[2010] KEHC 875 (KLR)
The court found that the first defendant, having sold and transferred the suit property to third parties, no longer had any proprietary interest and therefore lacked standing to seek orders for vacant possession or rent. Furthermore, since the property had been transferred to new registered proprietors during the...
Source-derived case information.
- Citation
- [2010] KEHC 875 (KLR)
- Parties
- Plaintiff: Eunice Nyakimba Waweru; Defendant: Peter Miyeinda; Defendant: Ann Nyabonyi Nyangw’ara; Defendant: Hon. Attorney General; Defendant: Zephania Nyang’wara
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 56 of 2008
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application dismissed; new parties joined; matter to proceed by viva voce evidence
- Legal Topics
- Vacant Possession, Joinder of Parties, Fraudulent Transfer, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Nyakimba Waweru
Plaintiff
Peter Miyeinda
Defendant
Ann Nyabonyi Nyangw’ara
Defendant
Hon. Attorney General
Defendant
Zephania Nyang’wara
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the first defendant, having sold and transferred the suit property, retains any proprietary interest to seek orders for vacant possession or rent.
- 2 Whether the transfer of the suit property to third parties during the pendency of the suit was fraudulent and contrary to court orders.
- 3 Whether the new proprietors should be joined as parties before any adverse orders are made against them.
Ratio Decidendi
The court found that the first defendant, having sold and transferred the suit property to third parties, no longer had any proprietary interest and therefore lacked standing to seek orders for vacant possession or rent. Furthermore, since the property had been transferred to new registered proprietors during the pendency of the suit and in possible contravention of a court order maintaining the status quo, the court could not proceed to make any orders adverse to the interests of the new proprietors without first joining them as parties and giving them an opportunity to be heard. The court also noted the need to investigate the circumstances of the transfer. Accordingly, the first...
Court Disposition
application dismissed; new parties joined; matter to proceed by viva voce evidence
Orders
- The first defendant’s application dated 15th December, 2008 is dismissed with costs.
- Eucabeth Mwango Ombego and Joseph Nyangena are ordered joined as defendants in this suit.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII.
CIVIL SUIT NO. 56 OF 2008
EUNICE NYAKIMBA WAWERU…………………………….PLAINTIFF
VERSUS
PETER MIYEINDA…………………………… 1ST DEFENDANT/RESPODENT
ANN NYABONYI NYANGW’ARA………….. 2ND DEFENDANT/RESPONDENT
HON. ATTORNEY GENERAL…………………3RD DEFENDANT/RESPONDENT
ZEPHANIANYANG’WARA………………… 4TH DEFENDANT/RESPONDENT
RULING
The first defendant filed on application dated15th December, 2008 seeking, inter alia, an order that the plaintiff, second and fourth defendants be compelled to give him vacant possession of the property known as West Kitutu/Bomatasa/2549, hereinafter referred to as the “suit property”. Alternatively, he prayed that they be ordered to pay rent to him for the period they have remained in illegal possession of the same. He claimed to have purchased the same from the second and fourth defendants. The suit property was eventually transferred to him.
The second and fourth defendants contested that
application though the fourth defendant later got into an agreement with the first defendant for refund of his money.
Before the application was fully heard, the first defendant sold and transferred the suit property to Eucabeth Mwango Nyango Nyangena and Joseph Nyangena Ombego who became the joint registered proprietors of the same on3rd February, 2010. The plaintiff and the fourth defendants termed that transfer fraudulent since the court had ordered that the status quo be maintained. They urged the court to dismiss the first defendant’s application and order that the aforesaid purchasers be joined as defendants in this suit.
The first defendant, having sold and transferred his interest in the suit property, has no proprietary interest in the same and cannot therefore be granted the orders sought in his application under reference. On the other hand, the court cannot proceed to hear this case and make orders that may be adverse to the interests of the current registered proprietors of the same before granting them an opportunity to be heard. The court will also require to investigate how the transaction was carried out. Consequently I make the following orders:-
(a)The first defendant’s application dated
15th December, 2008is dismissed with costs.
(b)Eucabeth Mwango Ombego and Joseph Nyangena
are ordered joined as defendants in this suit.
(c)This case which was commenced by
way of an originating summons shall be
resolved by way of viva voce evidence.
(d)The costs of this application shall be in the cause.
DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JULY, 2010.
D. MUSINGA
JUDGE.
29/7/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Nyambati for Mr. Oguttu for the Plaintiff
Mr. Masinde for the 1st Defendant
Mr. Otieno for the 2nd Defendant
Mr. Nyambati HB for Mr. Anyona for the 4th Defendant
Court: Ruling delivered in open court on 29th July, 2010.
D. MUSINGA
JUDGE.