[2009] KEHC 3179 (KLR)
The court held that interlocutory judgment should not have been entered in this land matter, as the claim was neither for a liquidated sum nor in tort. The Deputy Registrar erred in granting interlocutory judgment against the 2nd, 3rd, and 4th defendants. The proper procedure was to set the matter down for hearing....
Source-derived case information.
- Citation
- [2009] KEHC 3179 (KLR)
- Parties
- Plaintiff: Jonathan Kipyegon Maina; Defendant: John A. Matingwony; Defendant: Mursi A. Joseph; Defendant: Daudi A. Kitur; Defendant: David Cheruiyot; Defendant: Joel A. Surum
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 34 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- Interlocutory judgment set aside; costs in the cause.
- Legal Topics
- Interlocutory Judgment, Default Judgment, Eviction Orders, Procedure in Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Kipyegon Maina
Plaintiff
John A. Matingwony
Defendant
Mursi A. Joseph
Defendant
Daudi A. Kitur
Defendant
David Cheruiyot
Defendant
Joel A. Surum
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether interlocutory judgment can be entered in land matters where the claim is not for a liquidated sum or tort.
- 2 Whether the interlocutory judgment entered against the 2nd, 3rd, and 4th defendants was irregular and should be set aside.
Ratio Decidendi
The court held that interlocutory judgment should not have been entered in this land matter, as the claim was neither for a liquidated sum nor in tort. The Deputy Registrar erred in granting interlocutory judgment against the 2nd, 3rd, and 4th defendants. The proper procedure was to set the matter down for hearing. Consequently, the interlocutory judgment was set aside, and costs were ordered to be in the cause.
Court Disposition
Interlocutory judgment set aside; costs in the cause.
Orders
- The interlocutory judgment entered against the 2nd, 3rd, and 4th defendants is set aside.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO Civil Case 34 of 2008
JONATHAN KIPYEGON MAINA …………..…………………. .PLAINTIFF
VERSUS
JOHN A. MATINGWONY …………...……………………1ST DEFENDANT
MURSI A. JOSEPH …….……………………………….. 2ND DEFENDANT
DAUDI A. KITUR …………………………………………3RD DEFENDANT
DAVID CHERUIYOT ………………….………………….4TH DEFENDANT
JOEL A. SURUM …………………………………………5TH DEFENDANT
RULING
Civil Practice and Procedure
I: Background
1. The Plaintiff sued five defendants herein, in this land matter, seeking orders to evict all the five persons from land parcel LAR Kericho/Kapsoit/355.
2. The first defendant entered appearance in person and filed defence and a counter-claim. The 2nd, 3rd and 4th defendant failed to enter appearance and file defence. The plaintiff applied for interlocutory judgment and this was granted against the three defendants by the Deputy Registrar on 7th October, 2008.
3. The matter was to be set down for trial against the 1st defendant when the other three defendants entered appearance. Their advocate wrote to the Deputy Registrar to state that the judgment was irregular.
II: Ex Debito Justitia.
4. No interlocutory judgment should have been entered in land matters. This was irregular and the advocate sought the said judgments be set aside by this court.
5. I would agree with this. This is a land matter. It involves no monetary claim, nor a claim in tort. The proper procedure was for the Deputy Registrar to decline to make orders of the request sought and instead direct, under Order IXA r 8 Civil Procedure Rules that the matter be set down for hearing under Order 1X b of the Civil Procedure Rules.
6. I accordingly set aside the interlocutory judgment made by the deputy registrar. There be costs in the cause.
DATEDthis 19th day of May, 2009 atKERICHO
M.A. ANG’AWA
JUDGE
Advocates
S. Sigira advocate instructed by the firm of M/S Siele Sigira. & Co. advocates for the 2nd, 3rd, 4th and 5th defendants - present
C.K. Korir advocate instructed by the firm of M/S C.K. Korir & Co. advocates for the Plaintiff