[2006] KEHC 1396 (KLR)
The court found that the applicant failed to meet the requirements of Order XXXIX Rule 4 and 8 of the Civil Procedure Rules, as there was no evidence presented to show that the respondent would be unable to satisfy any judgment that may be made against them in the event the applicant succeeds in the counterclaim....
Source-derived case information.
- Citation
- [2006] KEHC 1396 (KLR)
- Parties
- Plaintiff: John Harrison Kinyanjui t/a J. Harrison Kinyanjui & Co. Advocates; Defendant: Karuna Properties Ltd; Defendant: Duncan Mugambi t/a Wright Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1324 of 2002
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Interlocutory Injunctions, Security for Costs, Enforcement of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Harrison Kinyanjui t/a J. Harrison Kinyanjui & Co. Advocates
Plaintiff
Karuna Properties Ltd
Defendant
Duncan Mugambi t/a Wright Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to an order compelling the respondent to pay or deposit the sum of KES 282,408.40 in court pending determination of the suit.
- 2 Whether the applicant has satisfied the requirements under Order XXXIX Rule 4 and 8 of the Civil Procedure Rules for grant of the orders sought.
Ratio Decidendi
The court found that the applicant failed to meet the requirements of Order XXXIX Rule 4 and 8 of the Civil Procedure Rules, as there was no evidence presented to show that the respondent would be unable to satisfy any judgment that may be made against them in the event the applicant succeeds in the counterclaim. The sums claimed by the applicant were inconsistent and unverified, and the application sought to obtain substantive relief without subjecting the evidence to cross-examination. Consequently, the court dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1324 of 2002
JOHN HARRISON KINYANJUI
t/a J. HARRISON KINYANJUI & CO. ADVOCATES………………….......……………PLAINTIFF
VERSUS
KARUNA PROPERTIES LTD……..........................................…………………1ST DEFENDANT
DUNCAN MUGAMBI t/a WRIGHT AUCTIONEERS………………………….2ND DEFENDANT
RULING
The applicant by way of this Notice of Motion expressed to be brought under Order XXXIX Rule 4 and 8 of the Civil Procedure Rules seeks orders that the Respondent be ordered to pay to the Applicant a sum of Shs.282,408. 40 or deposit the said amount in court.
The application is based on the grounds that the Respondent has failed to comply with the order of Alouch, J requiring him to pay all the undisputed rent; that the plaintiff’s lease is set to expire on 31st March 2005 and the defendant is apprehensive that he will not pay the outstanding rent before he vacates the premises; that in the interest of justice, it is fair and expedient in all circumstances of the case that the application be allowed.
The application is opposed by the respondent on the ground that the applicant has not demonstrated that the respondent is likely to be unable to satisfy the sum it is claiming in its counterclaim if, and in the event it succeeds in its counter claim.
Counsel for the respondent submits that the applicant seeks to get what is sought in the counterclaim without evidence being subjected to the rigours of cross examination.
In the plaint the sum sought is Shs.382,408/= while in the counterclaim it is Sh.339,204. It is not possible to tell the veracity of the sum claimed.
I agree with counsel for the respondent that the applicant has not met the requirements of Order XXXIX Rule 4 and 8. There is no evidence that in the event the applicant succeeds in his counter claim the respondent will likely be unable to satisfy the award.
The application therefore fails and it is dismissed with costs.
Dated and delivered at Nairobi this 14th day of September 2006.
J.L.A. OSIEMO
JUDGE