[2009] KEHC 3802 (KLR)
The court found that there are several substantive issues between the parties that require determination at a full hearing. Granting the eviction order at this interlocutory stage would be premature and contrary to the principle that suits should be determined comprehensively rather than in installments. The...
Source-derived case information.
- Citation
- [2009] KEHC 3802 (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 Interlocutory Application for Eviction
- Outcome
- Application dismissed as premature.
- Legal Topics
- Eviction Orders, Injunctions, Possession of Property, 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 Interlocutory Application for Eviction
Legal Issues
- 1 Whether the 2nd defendant is entitled to an order of eviction against the plaintiff pending the hearing and determination of the main suit.
- 2 Whether the application for eviction is premature given the existence of unresolved issues between the parties.
- 3 Whether the suit should proceed to full hearing rather than being determined in parts.
Ratio Decidendi
The court found that there are several substantive issues between the parties that require determination at a full hearing. Granting the eviction order at this interlocutory stage would be premature and contrary to the principle that suits should be determined comprehensively rather than in installments. The application for eviction was therefore dismissed to allow the matter to proceed to full hearing, where all issues can be resolved together.
Court Disposition
Application dismissed as premature.
Orders
- The application for eviction is dismissed.
- The parties are to set the suit down for hearing as soon as possible.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
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 29/10/2008 seeking orders to evict the plaintiff, its servants, agents or whomsoever now occupying 2nd defendant’s property comprised in Title No. Nairobi/Block 82/2190 in Tena Estate, Nairobi.
The grounds are that the 2nd defendant is the bona fide purchaser and registered owner of that title. The application is supported by affidavit of Isabel Waruguru Mwangi, the 2nd defendant/applicant. The applicant swears that she purchased the property at a public auction on 12th January 2007 and that the property was transferred to her by chargee, Co-operative Bank of Kenya Ltd. under chargees powers of sale.
On 30/7/2008 an injunction was issued by High Court restraining the 2nd defendants from interfering with the plaintiff’s quiet occupying of the plaintiff of the property until 5/8/08. These orders have been extended from time to time until in this suit the 2nd defendant has filed a defence and counter claim. She was counter-claiming for an order for possession against the plaintiff and mesne profits at the rate of Kshs.12,000/= per month from 1/2/2007 until possession is delivered and costs of the counter-claim.
I have perused the record and I see there are several issues that are to be tried between the parties. The suit is to be tried together, not by installments and it is my view that the parties ought to set the suit down for hearing once and for all as soon as possible.
I find this application premature and the same is hereby dismissed.
It is so ordered.
DATED and DELIVERED at Nairobi this 6th day of May 2009.
JOYCE N. KHAMINWA
JUDGE