[2001] KEHC 153 (KLR)
The court held that once a party has obtained judgment in a suit, the proper procedure is to execute the decree in that same action. The law does not permit the institution of a separate suit for the purpose of enforcing a judgment obtained in a previous case. Therefore, the plaintiff's application to strike out the...
Source-derived case information.
- Citation
- [2001] KEHC 153 (KLR)
- Parties
- Plaintiff: George Gikubu Mbuthia; Defendant: Nairobi City Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 855 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Summary Judgment
- Outcome
- Application dismissed with costs to the defendant.
- Legal Topics
- Execution of Judgments, Summary Judgment, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gikubu Mbuthia
Plaintiff
Nairobi City Council
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Summary Judgment
Legal Issues
- 1 Whether a party can bring a separate suit to enforce a judgment obtained in a previous suit.
- 2 Whether the defendant's defence should be struck out and summary judgment entered for the plaintiff.
Ratio Decidendi
The court held that once a party has obtained judgment in a suit, the proper procedure is to execute the decree in that same action. The law does not permit the institution of a separate suit for the purpose of enforcing a judgment obtained in a previous case. Therefore, the plaintiff's application to strike out the defence and enter summary judgment was disallowed, as the appropriate remedy was to proceed with execution in the original suit where judgment was obtained.
Court Disposition
Application dismissed with costs to the defendant.
Orders
- The plaintiff's application to strike out the defence and enter summary judgment is disallowed.
- The plaintiff shall bear the costs of this application.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 855 OF 2000 GEORGE GIKUBU MBUTHIA …………………………….PLAINTIFF - V E R S U S – NAIROBI CITY COUNCIL………………………………..DEFENDANT R U L I N G
In this application, the Plaintiff seeks to strike out the Defendant’s defence and to have summary judgment entered for him as prayed in the Plaint.
The Applicant successfully sued the Defendant in H.C.C.C. No. 1874 of 1988. He brings this action to enforce the judgment in that suit. Without going into detail, I do not think that the Plaintiff can be allowed to do this. Having obtained judgment on his claim, what remained was for him to proceed with execution in the same action. I do not think that the law allows a party to bring a separate action to execute a decree in another suit. I, therefore, disallow this application with costs.
DATED and DELIVERED at NAIROBI this 9th day of May, 2001.
ALNASHIR VISRAM
JUDGE.