[2016] KEHC 3988 (KLR)
The court found that the application was misconceived and without merit because judgment had already been delivered, costs assessed, and eviction orders executed. No appeal or stay had been sought, and the court was functus officio, lacking jurisdiction to revisit the matter. The applicants failed to cite any rule...
Source-derived case information.
- Citation
- [2016] KEHC 3988 (KLR)
- Parties
- Applicant: Jonathan Kisiang’ani King’aru; Applicant: Tom Malaba King’aru; Applicant: Shem Nabuyumbu King’aru; Respondent: Peter Wafula Kumali; Respondent: Samuel Kiptech Kumali; Respondent: Francis Waswa King’aru; Respondent: Titus Wamalwa Kumali; Respondent: Wycliffe Masibo Mangunya; Respondent: Ben Waswa; Respondent: John Naliakho Kumali
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 110 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Injunction, Leave to File Defence Out of Time, and Review of Ex Parte Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Setting Aside Ex Parte Judgment, Leave to File Out of Time, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Kisiang’ani King’aru
Applicant
Tom Malaba King’aru
Applicant
Shem Nabuyumbu King’aru
Applicant
Peter Wafula Kumali
Respondent
Samuel Kiptech Kumali
Respondent
Francis Waswa King’aru
Respondent
Titus Wamalwa Kumali
Respondent
Wycliffe Masibo Mangunya
Respondent
Ben Waswa
Respondent
John Naliakho Kumali
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Injunction, Leave to File Defence Out of Time, and Review of Ex Parte Judgment
Legal Issues
- 1 Whether the applicants are entitled to an injunction restraining the respondents from cutting down trees on the disputed land.
- 2 Whether the applicants should be granted leave to file a statement of defence and memorandum of appearance out of time.
- 3 Whether the court should review and set aside its ex parte judgment delivered on 15th June 2015.
Ratio Decidendi
The court found that the application was misconceived and without merit because judgment had already been delivered, costs assessed, and eviction orders executed. No appeal or stay had been sought, and the court was functus officio, lacking jurisdiction to revisit the matter. The applicants failed to cite any rule or demonstrate sufficient cause for the orders sought. Consequently, the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 110 OF 2013
JONATHAN KISIANG’ANI KING’ARU ……..…………….1ST APPLICANT
TOM MALABA KING’ARU….………..…………………… 2ND APPLICANT
SHEM NABUYUMBU KING’ARU………..…..……………..3RD APPLICANT
VERSUS
PETER WAFULA KUMALI ……...…....………………...1ST RESPONDENT
SAMUEL KIPTECH KUMALI ……....………………..….2ND RESPONDENT
FRANCIS WASWA KING’ARU ….….………………….3RD RESPONDENT
TITUS WAMALWA KUMALI ……….....……………...…4TH RESPONDENT
WYCLIFFE MASIBO MANGUNYA ……………………..5TH RESPONDENT
BEN WASWA …………………..…………………...…..6TH RESPONDENT
JOHN NALIAKHO KUMALI ………......…………………7TH RESPONDENT
RULING
[1] The applicants brought this application on 20th June, 2016. No rule upon which the case is grounded is cited. The applicants pray for an injunction to restrain the defendants/respondents from cutting down trees planted by the applicants in the piece of land known as S.Malakisi/N. & C Namwela/700 now subdivided into 1103, 1104 and 1105 respectively. They further pray that they be given leave to file a statement of Defence and a Memorandum of Appearance and other related documents out of time upon payment of court fees and finally that the court do review and set aside its order and judgement issued ex parte and delivered on 15th June 2015.
[2] The application is opposed by the respondents who filed grounds of opposition and argued that the application is defective and lacks merit and that the same is an abuse of the process of the court. Further that the application was overtaken by events as there was a judgement and eviction orders dated 28/09/2015 were executed.
[3] Judgement in this case was delivered on 15/7/2015. The applicants were represented by counsel. Costs were assessed by the Deputy Registrar at Kshs.160,074/= on 24/4/2016.
There has not been any appeal and or stay orders granted herein. This court is clearly functus official. The application by the applicants is misconceived. It has no merits and is dismissed with costs.
Dated, Signed and delivered at Bungoma this 27th day of July 2016
S.MUKUNYA - JUDGE
In the presence of
Gladys/Joy - Court Assistants
Miss Bett - Holding brief for Areba for the Plaintiff
Defendant - Absent