[2008] KEHC 57 (KLR)
The court found that the 3rd defendant, as the registered proprietor following an auction, is an interested party whose rights may be affected by the outcome of the suit. The drastic remedy of striking out the suit was not warranted as the issues raised required determination at trial. The court also declined to...
Source-derived case information.
- Citation
- [2008] KEHC 57 (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 Suit / Ruling on Notice of Motion by 3rd Defendant to Strike Out Suit or for Deposit of Rent Arrears
- Outcome
- application dismissed with costs in the cause
- Legal Topics
- Auction Sale, Right of Redemption, Proprietary Interest, Striking Out Suit, Rent Arrears
- 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 Suit / Ruling on Notice of Motion by 3rd Defendant to Strike Out Suit or for Deposit of Rent Arrears
Legal Issues
- 1 Whether the suit should be struck out for being 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 3rd defendant, as registered proprietor after auction, is entitled to possession or rent from the plaintiff.
Ratio Decidendi
The court found that the 3rd defendant, as the registered proprietor following an auction, is an interested party whose rights may be affected by the outcome of the suit. The drastic remedy of striking out the suit was not warranted as the issues raised required determination at trial. The court also declined to order the plaintiff to deposit rent arrears or future rents, noting that if the suit succeeds, the 3rd defendant's remedy would be against the first defendant. Accordingly, the application was dismissed with costs in the cause.
Court Disposition
application dismissed with costs in the cause
Orders
- The 3rd defendant's application to strike out the suit is dismissed.
- The application for deposit of rent arrears and future rents is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL DIVISION
CIVIL SUIT NO. 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