[2006] KEHC 2562 (KLR)
The court found that the plaintiff failed to provide adequate material or justification to warrant the exercise of the court's discretion in his favour for an extension of time to vacate the property. The plaintiff did not sufficiently demonstrate what efforts he had made to secure alternative accommodation or...
Source-derived case information.
- Citation
- [2006] KEHC 2562 (KLR)
- Parties
- Plaintiff: Francis Mureithi Gituku; Defendant: Patrick Kiarie Kagwanja; Defendant: Barclays Bank of Kenya Ltd; Defendant: Registrar of Titles; Defendant: Kangeri Wanjohi t/a Kindest Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 456 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Extension of Time to Vacate Property
- Outcome
- application dismissed with costs to the 1st defendant
- Judges
- MM Kasango
- Legal Topics
- Statutory Power of Sale, Vacant Possession, Injunctions, Discretionary Relief, Non Disclosure, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mureithi Gituku
Plaintiff
Patrick Kiarie Kagwanja
Defendant
Barclays Bank of Kenya Ltd
Defendant
Registrar of Titles
Defendant
Kangeri Wanjohi t/a Kindest Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Extension of Time to Vacate Property
Legal Issues
- 1 Whether the plaintiff has provided sufficient grounds for the court to exercise its discretion to extend time for vacating the suit property.
- 2 Whether the plaintiff's failure to disclose the pending application in the Court of Appeal affects the merits of the present application.
- 3 Whether the plaintiff has made adequate efforts to comply with the court's order for vacant possession.
Ratio Decidendi
The court found that the plaintiff failed to provide adequate material or justification to warrant the exercise of the court's discretion in his favour for an extension of time to vacate the property. The plaintiff did not sufficiently demonstrate what efforts he had made to secure alternative accommodation or address the issue of relocating his livestock. Furthermore, the plaintiff failed to disclose the existence of a pending application in the Court of Appeal, which the court considered material non-disclosure. The court concluded that the plaintiff had not acted in good faith and did not intend to comply with the court's previous order for vacant possession. As a result, the...
Court Disposition
application dismissed with costs to the 1st defendant
Orders
- The plaintiff's application dated 13th April 2006 is dismissed.
- The plaintiff shall pay the costs of the application to the 1st defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 456 of 2005
FRANCIS MUREITHI GITUKU………..........................………..PLAINTIFF/APPLICANT
VERSUS
PATRICK KIARIE KAGWANJA …………….......................…...……..1ST DEFENDANT
BARCLAYS BANK OF KENYA LTD……….......................…...……..2ND DEFENDANT
REGISTRAR OF TITLES……………………......................…………..3RD DEFENDANT
KANGERI WANJOHI t/aKINDEST AUCTIONEERS……...……….4TH DEFENDANT
R U L I N G
The 2nd defendant, in exercise of its statutory power of sale sold property L.R. NO. 12489/23, which prior to the sale was registered in the plaintiff’s name. The property was sold to the 1st defendant.
The plaintiff filed this suit to challenge the aforesaid sale and also sought an injunction. The court’s finding on that application was that the 1st defendant’s title could not be attacked.
What followed in this matter was an application filed by the 1st defendant seeking vacant possession of the suit property from the plaintiff. The court by its ruling delivered on 15th March 2006 granted orders vacant possession, thereof, giving the plaintiff 30 days to vacate.
The plaintiff did not vacate and by the present application, by chamber summons dated 13th April 2006 seeks an extension of a further 60 days to find alternative house to move to.
The plaintiffs application is based on the grounds that he resides on the suit property with his family and also thereon raises cattle, goats, sheep and chicken under a zero grazing system. That since the order was issue for him to vacate the suit property he has made frantic efforts to find alternative shelter for his family and livestock. That he has not succeeded to get alternative accommodation particularly because of his animals.
The application was vigorously opposed by the 1st defendant. 1st defendant submitted that the plaintiff moved to the court of appeal to challenge this court’s orders and it was only after the court of appeal failed to certify his matter as urgent that he retuned to this court with the present application. 1st defendant said that the plaintiff’s application should fail for none disclosure of the application in the court of appeal.
1st defendant also argued that the plaintiff had failed to give any justifiable reasons why this Honourable court should enlarge for him time to vacate.
The plaintiff by his present application seeks this court’s exercise of its discretion in his favour. The plaintiff, and I agree with the arguments of the 1st defendant needed to have placed before court material why this court should act in his favour. The plaintiff did not indeed tell the court what effort if any he has put to find alternative accommodation, if indeed the animals are a hindrance to his move, he fails to state what he intends to do abut them. In other words the court finds that the plaintiff has done nothing towards his obedience of this court’s order of 15th March 2006.
With regard to the plaintiff’s move to the court of appeal, the court finds that the plaintiff was challenging the refusal of this court to grant an injunction and collateral to that challenge he sought stay of execution of the order for vacant possession. It does seem that application for stay of this court order for possession is still alive. It does not sit well with this court that on being unsuccessful to have the court of appeal certify the application as urgent that the plaintiff would turn backwards and come to this court. I accept 1st defendant’s submission that the plaintiff, in making the present application, was obligated to make disclosure of that application pending in the court of appeal.
The court’s finding, in totality, is that the plaintiff is not deserving of this court’s exercise of its discretion in his favour and it is obvious to the court that the plaintiff does not intend to obey the order of this court on vacating the suit property. The plaintiff ought to be aware that the court is empowered to ensure that its orders are obeyed.
The end result is that the plaintiff’s application dated 13th April. 2006 is dismissed with costs to the 1st defendant.
MARY KASANGO
JUDGE
Dated and delivered this 11th May 2006.
MARY KASANGO
JUDGE