[2009] KEHC 1365 (KLR)
The court held that the procedure adopted—determining the suit by written submissions without adducing evidence—was irregular and potentially prejudicial to the parties. Since no evidence had been adduced and no directions had been taken to allow affidavit evidence, the court found it necessary for the matter to...
Source-derived case information.
- Citation
- [2009] KEHC 1365 (KLR)
- Parties
- Plaintiff: Jayne Wanjiku Mwangi; Defendant: City Council of Nairobi; Defendant: Teresiah Onyango
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 658 of 2008
- Procedural Posture
- Civil Suit / Pre Trial Directions
- Outcome
- Case to proceed to full trial; hearing dates to be taken.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Injunctions, Title Revocation, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jayne Wanjiku Mwangi
Plaintiff
City Council of Nairobi
Defendant
Teresiah Onyango
Defendant
Procedural Posture
Civil Suit / Pre Trial Directions
Legal Issues
- 1 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from repossessing or revoking her title to Plot No.B6-221 Kayole, Nairobi.
- 2 Whether the procedure of determining the suit by written submissions without adducing evidence is proper.
Ratio Decidendi
The court held that the procedure adopted—determining the suit by written submissions without adducing evidence—was irregular and potentially prejudicial to the parties. Since no evidence had been adduced and no directions had been taken to allow affidavit evidence, the court found it necessary for the matter to proceed to full trial. The parties must call evidence to resolve the factual disputes regarding the plaintiff's entitlement to the suit property and the propriety of the defendants' actions. The court directed that hearing dates be taken for the main suit to ensure a fair and proper determination of the issues.
Court Disposition
Case to proceed to full trial; hearing dates to be taken.
Orders
- Counsel to take hearing dates for the hearing of the main suit.
Full Case Text
Judgment text and source record
16 paragraphs
JAYNE WANJIKU MWANGI ………….......………..……….. PLAINTIFF
VS.
CITY COUNCIL OF NAIROBI ……………………… 1ST DEFENDANT
TERESIAH ONYANGO …………………………..…. 2ND DEFENDANT
RULING
This suit was instituted by way of a Plaint. The subject matter is a parcel of land known as Plot No.B6-221 Kayole, Nairobi. There is only one and basic prayer, that is, a permanent injunction against the defendants to restrain them from repossessing and/or revoking the plaintiff’s title.
There are several contentious issues in the plaint and the defendants on record. The triable issues have been identified and agreed upon. Documents have been agreed upon and exchanged. In essence, and the record shows as much, this case went through all pretrial procedures. In fact, on several occasions thereafter hearing dates were taken but, for reasons which are not clear on the record, the case has not been heard.
Then on 3rd December, 2008 when the case was listed for a hearing, the learned counsel for the plaintiff and 1st defendant proposed to file written submissions which were accepted by the court. Subsequently the second defendant agreed to that proposal.
With profound respect, the procedure adopted by counsel, and regrettably accepted by the court may be prejudicial to the parties herein.
No evidence has been adduced and no directions have been taken that, affidavit evidence is sufficient to determine the issues herein.
Be that as it may, it is my considered view that this case should go for full trial where parties must call evidence and if need be rely on the submissions which they have filed, prematurely.
I direct that counsel should now take hearing dates for the hearing of the main suit.
Orders accordingly.
Dated, signed and delivered at Nairobi this 22ndday of October, 2009.
A. MBOGHOLI MSAGHA
JUDGE