[2004] KEHC 2373 (KLR)
The court held that the applicant's intended action for damages arising out of execution of an order to recover costs is a separate cause of action and does not fall within the ambit of Sections 3A, 34, and 91 of the Civil Procedure Act. Therefore, leave of court is not required to institute such proceedings....
Source-derived case information.
- Citation
- [2004] KEHC 2373 (KLR)
- Parties
- Applicant: John Francis Muyodi; Respondent: Peter Lunani Ongoma; Respondent: Mariko Ayieko Ongoma; Respondent: Kennedy Odhiambo Owiti
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- ? 27 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Institute Proceedings for Damages
- Outcome
- application dismissed and struck out with costs to the respondents
- Judges
- JK Sergon
- Legal Topics
- Leave to Institute Proceedings, Malicious Prosecution, Unlawful Committal, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Francis Muyodi
Applicant
Peter Lunani Ongoma
Respondent
Mariko Ayieko Ongoma
Respondent
Kennedy Odhiambo Owiti
Respondent
Procedural Posture
Civil Case / Ruling on Application for Leave to Institute Proceedings for Damages
Legal Issues
- 1 Whether leave of court is required to institute proceedings for damages arising from alleged unlawful and malicious committal to civil jail.
- 2 Whether the applicant's application is properly before the court under the cited provisions of the Civil Procedure Act.
Ratio Decidendi
The court held that the applicant's intended action for damages arising out of execution of an order to recover costs is a separate cause of action and does not fall within the ambit of Sections 3A, 34, and 91 of the Civil Procedure Act. Therefore, leave of court is not required to institute such proceedings. Furthermore, the application was improperly before the court as it was brought by chamber summons instead of by motion as required by the Civil Procedure Rules. Consequently, the application was found to be misplaced and was struck out and dismissed with costs to the respondents.
Court Disposition
application dismissed and struck out with costs to the respondents
Orders
- The summons is struck out and dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUISA
CIVIL CASE NO. 27 OF 2000 (OS)
JOHN FRANCIS MUYODI ………….. APPLICANT/PLAINTIFF
VS
1. PETER LUNANI ONGOMA
2. MARIKO AYIEKO ONGOMA ……… RESPONDENTS/DEFENDANTS
3. KENNEDY ODHIAMBO OWITI
R U L I N G
John Francis Muyodi, the applicant herein sought for leave to institute proceedings to claim damages for unlawful and malicious committal to Civil jail by the respondents in a summons said to be filed under the provisions of sections 3A, 34 and 91 of the civil procedure Act. The application is supported by the affidavit of the applicant sworn on 25th day of November 2003.
The Respondents opposed the summons on the ground that leave is not necessary in such cases, hence the application is misconceived and amounts to an abuse of the court process. The third respondent also attacked the applicant’s application stating that he cannot claim for damages against counsel whose principals or clients are disclosed and well known.
This suit was struck out on the 7th day of December 2000 and the applicant herein was ordered to pay costs as a consequence. It would appear the Respondent applied for execution of the decree to recover the ordered costs. In the process of execution the applicant was arrested and put in for civil jail. It appears he successfully made an application to set aside the committal order. He now seeks for leave to commence an action to claim general damages for the unlawful execution carried out by the Respondents.
I have considered the submissions made by the applicant and the Respondents’ advocate. I find that this suit relate to recovery of land and the intended action is in respect of damages arising out of execution of an order to recover costs. The two actions are quite different and cannot fall within the ambit of Section 3 A, 34 and 91 of the civil procedure Act. It is a separate cause of action which the applicant does not need leave to institute. I find this application misplaced and improperly before me. Furthermore the applicant cannot approach this court by way of a chamber summons. He can only be properly before this court by motion under order L rule 1 of the civil procedure rules.
The upshot therefore is that the summons is ordered struck out and dismissed with costs to the Respondents.
DATED AND DELIVERED THIS 9th DAY OF July 2004
J.K. SERGON
JUDGE