[2008] KEHC 1651 (KLR)
The court found that the third defendant, as the registered proprietor following an auction, is an interested party whose rights may be affected by the outcome of the suit. However, the drastic remedy of striking out the suit was not warranted at this stage, as the issues raised require determination at trial. The...
Source-derived case information.
- Citation
- [2008] KEHC 1651 (KLR)
- Parties
- Plaintiff: Joyce Mukuhi Njenga; Defendant: Equity Building Society Ltd.; Defendant: Patrick Kungu Kimata t/a Marchet Auctioneers; Defendant: Agnes Wanjiru Muchai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 359 of 2004
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Strike Out Suit or for Deposit of Rent Arrears
- Outcome
- application dismissed
- Legal Topics
- Proprietary Rights, Auction Sales, Right of Redemption, Striking Out Suit, Occupation Rent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Mukuhi Njenga
Plaintiff
Equity Building Society Ltd.
Defendant
Patrick Kungu Kimata t/a Marchet Auctioneers
Defendant
Agnes Wanjiru Muchai
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Strike Out Suit or for Deposit of Rent Arrears
Legal Issues
- 1 Whether the suit should be struck out as an abuse of process.
- 2 Whether the plaintiff should be ordered to deposit rent arrears and future rents for occupation of the suit property.
- 3 Whether the third defendant, as registered proprietor after auction, is entitled to remedies against the plaintiff.
Ratio Decidendi
The court found that the third defendant, as the registered proprietor following an auction, is an interested party whose rights may be affected by the outcome of the suit. However, the drastic remedy of striking out the suit was not warranted at this stage, as the issues raised require determination at trial. The court also held that the applicant's remedy for occupation rent or damages, if any, would arise only if the suit fails, and that the appropriate party for such a claim would be the first defendant if the suit succeeds. Accordingly, the application was dismissed with costs in the cause.
Court Disposition
application dismissed
Orders
- The application dated 26/3/08 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 359 of 2004
JOYCE MUKUHI NJENGA ……..…………………………PLAINTIFF
VERSUS
EQUITY BUILDING SOCIETY LTD.
PATRICT KUNGU KIMATA t/aMARCHET AUCTIONEERS
AGNES WANJIRU MUCHAI …………………………DEFENDANTS
R U L I N G
Notice of Motion dated 26/3/08 filed by the 3rd defendant/applicant seeking orders:
(a) that the suit be struck off with costs for being an abuse of due process and
(b) in the alternative the plaintiff be ordered to deposit in a joint account rent arrears and/or future rents at the rate of Kshs.25,000/= per month with effect from 1st day of June 2004 until the hearing and determination of this suit
(c) costs of this application be provided for.
On the ground that the applicant was the highest bidder at the auction and applicant was not a party to the preparation and registration of the charge and that the applicant is now registered as proprietor of the property on 31/5/2004, the respondent has lost her right of redemption and her remedy now is in damages. The supporting affidavit indicates that the applicant was highest bidder in the auction conducted in respect of suit property and she is now registered as proprietor. But that the plaintiff/respondent and her agents and servants remain in the occupation of the suit property and that the properties in the area fetch a minimum Kshs.25,000/= rent per month and it is only fair that the respondent do pay rents for the occupation of the applicant’s property.
I have perused the record and considered the applicants arguments. It is my view that she should continue in the suit since she is an interested party and the outcome may affect her interests.
According to the authorities tendered by the parties it appears that there are various opinions as to the status of documents prepared by non-advocates. If the suit was to succeed the remedy for applicant would be against the first defendant.
In the circumstances, I dismiss the application with costs in the cause.
DATED and DELIVERED at Nairobi this 29th day of August 2008.
JOYCE N. KHAMINWA
JUDGE