[2009] KEHC 1593 (KLR)
The court found that it had previously overlooked an order in favour of the 2nd defendant, who was the registered owner of the property following a public auction. There was no evidence presented by the plaintiff to justify depriving the 2nd defendant of possession. The court exercised its discretion to review and...
Source-derived case information.
- Citation
- [2009] KEHC 1593 (KLR)
- Parties
- Plaintiff: John Bundi Magiri; Defendant: Co-operative Bank of Kenya Ltd; Defendant: Isabel Waruguru Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 443 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Previous Dismissal and Allow Eviction Application
- Outcome
- Application for review allowed; previous dismissal set aside; eviction order granted; mesne profits denied.
- Legal Topics
- Eviction Orders, Injunctions, Review of Court Orders, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Bundi Magiri
Plaintiff
Co-operative Bank of Kenya Ltd
Defendant
Isabel Waruguru Mwangi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Previous Dismissal and Allow Eviction Application
Legal Issues
- 1 Whether the court should set aside its previous order dismissing the 2nd defendant's application for eviction of the plaintiff.
- 2 Whether the 2nd defendant is entitled to orders of possession and eviction against the plaintiff.
- 3 Whether the 2nd defendant is entitled to mesne profits from the plaintiff.
Ratio Decidendi
The court found that it had previously overlooked an order in favour of the 2nd defendant, who was the registered owner of the property following a public auction. There was no evidence presented by the plaintiff to justify depriving the 2nd defendant of possession. The court exercised its discretion to review and set aside its earlier order dismissing the 2nd defendant's application for eviction. The 2nd defendant's application for possession and eviction was allowed, but the claim for mesne profits was denied as it was not proved. The plaintiff was granted 60 days to vacate the property.
Court Disposition
Application for review allowed; previous dismissal set aside; eviction order granted; mesne profits denied.
Orders
- The ruling and orders made by this court dated 6/5/2009 are set aside.
- The second defendant's application filed on 29/10/2008 is allowed and orders granted as prayed, except for mesne profits.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 443 of 2008
JOHN BUNDI MAGIRI ..................................................................PLAINTIFF
VERSUS
CO-OPERATIVE BANK OF KENYA LTD.....................................1ST DEFENDANT
ISABEL WARUGURU MWANGI.................................................2ND DEFENDANT
R U L I N G
Notice of Motion dated 19/6/2008 seeks order made by this court on 6/5/09 dismissing the 2nd defendant’s application filed and dated on 29/10/2008 be set aside. That application was filed by Isabel Waruguru Mwangi seeking orders to evict the plaintiff from the property Nairobi/Block 82/2190 situate on Tena Estate, Nairobi. The order for costs was sought. The outcome of that application was the Ruling attached dated 6/5/2009.
On page 2 of that Ruling this court stated:-
“On 30/7/2008 an injunction was issued by High Court restraining the 2nd defendant from interfering with the plaintiff’s quiet occupying of the plaintiff’s property until 5/8/2008. The orders were extended from time to time the 2nd defendant has filed a defence and a counter-claim for order for possession against the plaintiff and mesne profits at the rate of Kshs.12,000/= per month until possession is granted.”
I have perused the record and I said:-
“I see there are several issues to be tried between the parties. The suit is to be tried together not by installment and it is my view that the parties ought to set the suit down for hearing.”
The second defendant’s statement of defence was not filed until 2nd February 2009 and the ruling was on 6/5/2009. Earlier on 25/11/2008 this court had delivered another ruling on an application dated 29/11/2008 by the plaintiff in that case. I dismissed that application saying:-
“I have examined the 2nd defendant’s affidavit and statement of defence and it is clear that she purchased the property in an auction and there is no evidence on her part such as would warrant her sale being cancelled. I do not see any reason to keep her from her property. She is the registered owner.”
That was on 25/11/2008. The court is now being asked by the purchaser, 2nd defendant to set aside the dismissal of her application dated 29/10/2008 and grant orders as prayed in that application. It is clear this court overlooked the first order which was really in favour of second defendant. The 2nd defendant was supported by first defendant.
In the circumstances, the order for review is granted. The ruling and orders made by this court dated 6/5/2009 are hereby set aside. The second defendant’s application filed on 29/10/2009 is hereby allowed and orders granted as prayed except that the plaintiff shall have 60 days within which to vacate on the prayer for mesne profits at Kshs.12,000/= p.m., this was not proved and is not granted.
Costs of this application shall be in the cause.
It is so ordered.
DATED, SIGNED and DELIVERED at Nairobi this 23rd day of October 2009.
JOYCE N. KHAMINWA
JUDGE