[2018] KEELC 1042 (KLR)
The court found that the application for summary judgment could not be allowed because there was no evidence that the second defendant was ever served, as service by advertisement was only in respect of the first defendant. Additionally, the only evidence of ownership of the suit property was a certificate annexed...
Source-derived case information.
- Citation
- [2018] KEELC 1042 (KLR)
- Parties
- Plaintiff: Harris Maina Gichuhi & Another; Defendant: Francis K Muigai & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 660 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application for Summary Judgment
- Outcome
- application dismissed
- Judges
- EO Obaga
- Legal Topics
- Summary Judgment, Service of Process, Injunctions, Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harris Maina Gichuhi & Another
Plaintiff
Francis K Muigai & Another
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the plaintiffs are entitled to summary judgment against the defendants as prayed in the notice of motion.
- 2 Whether proper service was effected on all defendants, particularly the second defendant.
- 3 Whether the evidence provided is sufficient to warrant entry of summary judgment.
Ratio Decidendi
The court found that the application for summary judgment could not be allowed because there was no evidence that the second defendant was ever served, as service by advertisement was only in respect of the first defendant. Additionally, the only evidence of ownership of the suit property was a certificate annexed to the application, which the court found insufficient to support the claim for special damages. The court held that the proper procedure would have been to fix the case for formal proof rather than seek summary judgment. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for summary judgment is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO. 660 OF 2012
HARRIS MAINA GICHUHI & ANOTHER.....................PLAINTIFFS
=VERSUS=
FRANCIS K MUIGAI & ANOTHER.............................DEFENDANTS
RULING
1. The plaintiffs/applicants filed a notice of motion dated 15th April 2014 in which they seek entry of summary judgement against the defendants. The application is expressed to be brought under the provisions of Order 36 Rule 1 (1) ( b) and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
2. The applicants contend that they filed this suit in court together with the notice of motion. They obtained temporary orders of injunction against the first defendant/respondent ex-parte. The applicants later came and were granted leave to serve summons through substituted service. They proceeded to serve summon by advertisement in the press. They have now come to court seeking entry of summary judgement as prayed in the Plaint.
3. I have gone through the application, the supporting affidavit as well as the annextures to the application. I have also gone through the submissions filed by the applicants. One of the prayers in the plaint is special damages of Kshs.500,000/=. The damages arose out of a house belonging to the applicants which was demolished by the first defendant/respondent. Other than the orders obtained from Court there is only a copy of certificate annexed to the application as proof of ownership of the suit property. This application cannot be allowed as prayed. There is no evidence as to whether the second defendant was ever served. Service by advertisement was only in respect of the first defendant. The best way the applicants should have followed was to fix their case for formal proof and not coming to court for summary judgement. I therefore find no merit in this application which is dismissed with no order as to costs.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 4thday of October, 2018
E.O.OBAGA
JUDGE
In the presence of:
In the absence of parties who were aware of the date and time for delivery of ruling.
Court Assistant : Hilda
E.O. OBAGA
JUDGE