[2008] KEHC 1702 (KLR)
The court found that the Plaintiffs' claim was solely for special damages arising from alleged destruction of property by the Defendant on 31/08/2007, and that the relief sought was purely pecuniary with no ongoing dispute over property or its use. Since the event had already occurred and the Plaintiffs had...
Source-derived case information.
- Citation
- [2008] KEHC 1702 (KLR)
- Parties
- Plaintiff: Francis Wanjala Thomas; Plaintiff: Florence Nekesa Wafula; Plaintiff: Solomon Shoso; Plaintiff: Elizabeth Kigen; Defendant: Eldoret Municipal Council
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 9 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application for Adjournment and Extension of Interim Orders
- Outcome
- application dismissed; interim orders discharged
- Legal Topics
- Interim Orders, Adjournment, Special Damages, Pleadings, Pecuniary Claim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Wanjala Thomas
Plaintiff
Florence Nekesa Wafula
Plaintiff
Solomon Shoso
Plaintiff
Elizabeth Kigen
Plaintiff
Eldoret Municipal Council
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Adjournment and Extension of Interim Orders
Legal Issues
- 1 Whether the interim ex parte orders should be extended pending inter partes hearing.
- 2 Whether the application for adjournment and leave to file a further affidavit should be granted.
- 3 Whether there is any property or subject matter to be preserved by interim orders.
Ratio Decidendi
The court found that the Plaintiffs' claim was solely for special damages arising from alleged destruction of property by the Defendant on 31/08/2007, and that the relief sought was purely pecuniary with no ongoing dispute over property or its use. Since the event had already occurred and the Plaintiffs had quantified their losses, there was nothing left to preserve by way of interim orders. The court held that the ex parte interim order should not have been granted in the first place, as there was no property or subject matter requiring preservation. Consequently, the application for adjournment and leave to file a further affidavit was dismissed, and the interim orders were discharged.
Court Disposition
application dismissed; interim orders discharged
Orders
- The ex parte interim orders are discharged.
- The application for adjournment and leave to file a further affidavit is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Suit 9 of 2008
FRANCIS WANJALA THOMAS ………… 1ST PLAIANTIFF
FLORENCENEKESA WAFULA ……… … 2ND PLAINTIFF
SOLOMON SHOSO AND ………………. 3RD PLAINTIFF
ELIZABETH KIGEN ……………………… 4TH PLAINTIFF
=VERSUS=
ELDORET MUNICIPAL COUNCIL ……. DEFENDANT
RULING
I have considered the application for adjourned of the hearing of the application and for leave to file a further affidavit on the part of the second Plaintiff/Applicant. Mr. Shanza for the Respondent has no objection to the adjournment except that he opposes any extension of interim Orders.
I have heard arguments as to the pros and cons of any extension of the Interim Orders.
With regard to extension, this Court usually grants extension if there is any adjournment at the inter parties hearing where there is an ex parte order in existence.
However, it has come to my attention that the only relief sought here are:
1. Material damage of Kshs 1,380,000/=
2. Costs of the suit.
The Plaintiffs contend that on 31/08/2007, the Defendant destroyed their properties as a result of which they have suffered loss and damages.
It is clear that the event allegedly having taken place on 31//08/2007 is now past and the Plaintiffs have even quantified the value of their lost properties or losses. They have filed for a liquidated claim in special damages in the sum of shs 1,380,000/=.
As a result there is no pending dispute before this court relating to any property or user thereof.
The parties are bound by their pleadings. This Court cannot act in vain neither can it speculate or hypothesize about future claims or intended amendments.
The exparte order was obtained on the basis of the pleadings on record. With hindsight, it should not have been granted in the first place as there is nothing to preserve. This is a pecuniary claim and there is no prayer or relief about any property.
As a result, I do hereby discharge the ex-parte Interim Orders. In the light of the foregoing, I really see no purpose for any inter parties hearing.
The application is bound to fail for the very reasons given above. It will be a waste of precious judicial time to set the application down for hearing and to grant leave to file other affidavits.
In exercise of this Court’s inherent jurisdiction and discretion, the application is dismissed. Costs shall be in the cause.
DATED AND DELIVERED AT ELDORET ON THIS 29TH DAY OF
JULY, 2008
……………………………………………………
M.K. IBRAHIM,
JUDGE.