[1998] KEHC 234 (KLR)
The court held that granting the orders sought in the interlocutory application would effectively dispose of the entire suit, leaving nothing for the trial judge to determine. This would deny the parties the opportunity to be heard in the main suit, which is contrary to the principles of fair hearing and due...
Source-derived case information.
- Citation
- [1998] KEHC 234 (KLR)
- Parties
- Plaintiff: Githunguri Dairy Farmers & Co-operative Society Limited; Defendant: Jeremiah Mungai Mwaura & 3 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2011 of 1998
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondent/defendant
- Judges
- JL Osiemo
- Legal Topics
- Removal of Caution, Land Disputes, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githunguri Dairy Farmers & Co-operative Society Limited
Plaintiff
Jeremiah Mungai Mwaura & 3 Others
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application for removal of cautions should be granted at the interlocutory stage.
- 2 Whether granting the application would dispose of the entire suit without a full hearing.
Ratio Decidendi
The court held that granting the orders sought in the interlocutory application would effectively dispose of the entire suit, leaving nothing for the trial judge to determine. This would deny the parties the opportunity to be heard in the main suit, which is contrary to the principles of fair hearing and due process. Therefore, the application was dismissed to preserve the right of the parties to a full hearing on the merits of the case.
Court Disposition
application dismissed with costs to the respondent/defendant
Orders
- The application for removal of cautions is dismissed.
- Costs of the application awarded to the respondent/defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE 2011 OF 1998
GITHUNGURI DAIRY FARMERS &
CO-OPERATIVE SOCIETY LIMITED……….…..……PLAINTIFF
VERSUS
JEREMIAH MUNGAI MWAURA & 3 OTHERS…………………….DEFENDANT
RULING
On 25. 5.1998 the applicant plaintiff filed this suit by way a plaint against the respondents/defendants seeking the following orders: (a) An order for removal of the caution lodged against Land reference numbers GITHUNGURI/KIANJAI/1206 and 1440.
(b) General damages
(c) Costs of the suit
(d) Interest on (a) and (c) above at court rates
(e) Any other relief this court may deem just to grant. This plaint was accompanied by an application by way of notice of motion seeking for orders.
(a) That the cautions lodged in respect of the land parcels reference No. GITHUNGURI/KIANJAI/1206 and 1440 be removed.
(b) That the respondents do pay costs of this applications. This application is the one which came up for hearing and was argued at length. It is apparent that the orders sought in this application are similar to those sought in the main suit, that is removal of the cautions lodged on land references No. GITHUNGURI/KIANJAI/1206 and 1440.
If the orders sought in this application are granted it will dipose of the whole suit and there will be nothing left for the trial judge. The applicant is seeking to dispose of the suit through an application which will deny the parties the opportunity to be heard in the main suit.
For that reason alone and without going into other issues raised during the submissions, I dismiss this application with costs to the respondent/defendant.
J.L.A. OSIEMO
JUDGE
19. 11. 1998